Aquilante

The defendants were indicted for the offenses of grand theft, a violation of section 487, subdivision 1 of the Penal Code, of burglary, a violation of section 459 of the Penal Code, and of conspiracy, a violation of sections 182, 484-487 of the Penal Code; were charged with the commission of prior offenses; admitted the latter; denied the former; after trial by jury, were found guilty of all offenses; by judgment, were sentenced to imprisonment in the state prison; moved for a new trial, which was denied; appealed from the order of denial prior to the amendment of section 1237 of the Penal Code eliminating such an appeal; and also appealed from the judgment.

The indictment in question followed the May 9, 1961, theft of 36 men’s suits from a J. C. Penney store in San Diego *532 and 16 men’s suits from a Montgomery Ward store in the same city. The defendants and another man appeared in the J. C. Penney store on the date in question; four of them engaged the attention of the sales clerks while one of their party, the defendant Romano, was seen in the men’s suit section, but the clerks were not able to wait upon him because they were kept busy by the other four; sometime in the…