People v. Hawthorne

WHITE, J.

In an information containing five counts the defendant was charged in each count with the crime of forgery. It was also alleged that the defendant had theretofore suffered three convictions on felony charges upon each of which convictions he served a term in prison. Following the entry of not guilty pleas on all counts in the information, the cause proceeded to trial before the court sitting without a jury, resulting in defendant’s conviction upon all five counts. The court also found the allegations as to all alleged prior convictions to be true.

[264]

From the order denying his motion for a' new trial and from the judgment of conviction, defendant prosecutes this appeal.

Respondent moves to dismiss the appeal on the ground that the record does not indicate whether it was taken from the judgment, the order denying the motion for a new trial, or from both. We feel, however, that the document filed by defendant in the trial court within five days after denial of the motion for a new trial and the pronouncement of judgment, and denominated “notice of intention to appeal and other relief” was such a substantial compliance with the statute as to constitute a notice of appeal from both the judgment and the order denying a new trial. The notice was so considered by the trial judge who ordered the clerk’s and reporter’s transcripts prepared and the same are now before us. In the interest of justice we shall, therefore, give consideration to the appeal as being one from both the judgment and the order denying the motion for a new trial.

The sole and only ground urged for a reversal is that the trial court, at the time defendant was arraigned for judgment did not inquire of him as to whether “he has any legal cause to show why judgment should not be pronounced against him” as prescribed by section 1200 of the Penal Code. Respondent concedes and the reporter’s transcript shows that the pertinent inquiry was not made. This being the only issue presented in this proceeding, we deem it unnecessary to set forth a statement of the evidence other than to say that it was abundantly sufficient to establish defendant’s guilt upon all counts pleaded in the information.

There can be no question but that in felony cases, when judgment is rendered the defendant must be personally present and at that time, in accordance with the provisions of section 1200 of the Penal Code “he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and