Wong

Appeal from judgment of conviction after jury verdict of guilty of violation of Penal Code, section 459 (burglary, second degree).

Questions Presented

Admissibility of testimony concerning condition of the pay telephone approximately six hours after defendant’s arrest, and of the paper used to stuff the telephone, found at that time;

*846 Facts

Defendant was charged hy information with violating section 459, by entering a certain telephone booth with intent to commit theft.

On March 12, 1965, at about 2 a.m., police officer Alexander Barron saw defendant occupying one of two pay telephone booths in the 700 block of Market Street, San Francisco. He watched defendant for from 30 seconds to a minute “working a metal tine up and down inside the coin return chute.” After informing defendant of his rights, Barron asked him what he was doing there. He replied that he was “just checking the box.” Barron placed him under arrest and found $2.10, all in dimes, on defendant’s person. He also found 40 cents in dimes in the coin return chute. Barron left the area with defendant without placing any guard at the booth or any notice on it that the telephone should not be used.

Telephone…