People v. Silva

SCOTT, J.,

pro tem.

Defendant was convicted of burglary in the first degree after prior conviction of a felony, to wit, burglary, which defendant had admitted on arraignment. He appeals from the judgment and order denying motion for new trial.

After the jury was impaneled the court directed the clerk to read the information, and thereupon the reporter’s transcript shows: “ (Information read and plea stated.) ” Appellant asserts that the clerk read the entire information and failed to omit the reference to the prior conviction, as required by Penal Code section 1025, thereby informing the jury that defendant had been convicted of a prior felony. We áre limited to the record before us in determining such questions, and there is nothing to indicate that the matter of which appellant now complains transpired at the outset of the trial. No objection nor interruption of any kind was interposed directing the court’s attention to any such irregularity or asking that any action be taken with reference thereto. Furthermore, the defendant took the stand in his own behalf and on cross-examination was properly asked

(People

v. Oliver, 7 Cal. App. 601 [95 Pac. 172]) and admitted that he had theretofore suffered such felony conviction.

The evidence supports the verdict. It is not questioned that the residence of the complaining witness was burglarized. A man' resembling appellant, driving an old

[618]

ear resembling his, was seen at the premises after dark on the evening in question. A coat stolen at the time was being worn by appellant when arrested. The latter made statements to the officers connecting him with the commission of the crime. At the trial he testified that he had agreed to plead guilty to two counts.

Certain instructions given and omitted are complained of as giving the jury an erroneous and prejudicial view of the law applicable to the facts in the case. We have read the court’s entire charge, together with the requested instructions which were omitted, and it appears that the jury was fully and correctly instructed on all essential matters and that the allegations of error are not of substantial merit.