Gautt

This is an appeal from a judgment wherein appellant was found guilty of burglary.

Appellant Gautt was charged with two codefendants in an information filed in Los Angeles County on March 23, 1960, with burglary, in that they did on or about February 20, 1960, enter a men's store with the intent to commit a theft. It was also charged that said appellant was previously convicted of burglary, a felony, on or about February 1956 and served a term of imprisonment therefor in the state prison. The codefendants were charged with prior convictions of robbery and burglary respectively.

Appellant pleaded not guilty, a jury trial was properly waived, and the matter was submitted on the transcript of the preliminary hearing, and such other testimony as either side desired to introduce. Appellant was found guilty of second degree burglary. His motion for a new trial was denied and he was sentenced to the state prison.

The appeal is from the judgment and the order denying the motion for a new trial. The appeal of Azell Hayes was dismissed under rule 17 (a) of the Rules on Appeal.

A résumé of the facts is as follows:

On February 19, 1960, Sidney Jacobs was interested in a clothing business…