Carter

Defendant was charged with a violation of section 459 of the Penal Code (burglary), it being charged that, on April 1, 1962, he entered a dwelling with the intent to commit theft. Two prior felony convictions were alleged—one in 1956 for petty theft with a prior conviction of petty theft, and one in 1958 for petty theft with a prior conviction of a felony. Defendant entered a plea of not guilty and denied the alleged prior convictions. The court found defendant guilty of first degree burglary. No finding was *812 made with respect to the prior convictions, probation was denied, and defendant was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

Walton Boshear, the only witness for the People, gave the following testimony: At approximately 3 :30 a.m. on April 1, 1962, he was awakened by the barking of his dog in the hallway adjacent to the front door of his duplex type apartment. He observed defendant standing in the hallway. Taking his gun, he called out to defendant, asking him who he was and what he wanted. The dog was approaching from the other direction. Defendant backed into the living room and “stammering,” replied, “I…