People v. Costa

KNIGHT, J.

Appellants were found guilty by a jury of an attempted burglary, and after motions for probation and new trial were heard and denied were sentenced to imprisonment in the state prison for the period prescribed by law. Thereupon they took this appeal from the judgment of conviction and the order denying their motions for new trial. In presenting their appeal they make no claim that they were tried unfairly or convicted unjustly, it being stated in their brief, in this regard, that they “do not seek a reversal of their conviction, nor at this time do they attack the order denying their motions for new trial”; but they 'contend that in determining their applications for probation the trial court erroneously took into consideration certain evidence relating to the possession of a revolver; and they ask, therefore, that the judgment of sentence be set aside and that the cause be remanded to the trial court for the purpose of having their applications for probation again considered and determined.

Section 460 of the Penal Code declares, in part, and the jury in the present case was instructed, that “every burglary of an inhabited dwelling house or building in the night time, and every burglary, whether in the day time or the night time, committed by a person armed with a deadly weapon . . . ,” etc., is burglary of the first, degree; and that all other kinds of burglary not defined therein are of the second degree. The evidence adduced at the trial of the present case established without conflict that the attempted burglary was committed at 1 o’clock in the morning, and that the house sought to be entered was a dwelling actually occupied at the time by a Mrs. Julia Baccei and her husband. Nevertheless, the jury found that it was an attempted burglary of the second degree. The evidence further shows that the crime of burglary was not consummated because appellants fled from the house when Baccei phoned for the police. Within an hour thereafter, however, appellants returned to the premises with the evident pur

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pose of again seeking entrance; but upon entering the yard they were seen by Mrs. Baccei, who immediately summoned the police, and within a few minutes thereafter the police captured appellants about half a block from the Baccei home. They were searched and a “jimmy” and a flashlight were found on one of them and a Colt’s revolver on the other.