Crain

Defendants were charged with grand theft (§ 487, subd. 1, Pen. Code); the cause was submitted to the court on the transcript of the testimony taken at the preliminary hearing. No additional evidence was offered and neither defendant testified or offered a defense. Both defendants were found guilty of petty theft (§ 488, Pen. Code), a lesser but necessarily included offense. They appeal from the judgments.

Anita Evans, owner of an apartment house, rented an upstairs apartment to defendants on June 1, 1965. The apartment was completely furnished by Mrs. Evans with all necessary items, including dishes, glassware, linens, kitchenware and appliances. Served by the marshal with papers on July 12, 1965, defendants were to leave on July 15, 1965. Defendants moved out on July 17, 1965; on that day they left the lights on, “so that night at 10 :30 at night the 17th of the month” Mrs. Evans told her son “Let’s go upstairs.” They went to the upstairs apartment and found the defendants gone and the cupboards empty. The door was closed, and Mrs. Evans found the key to the apartment on the table in the kitchen. She discovered to be missing her dinnerware worth approximately $600, glassware…