People v. Schunke

WOOD, J.

Defendants were charged in count I of the information with the crime of robbery, in that they forcibly took from the person of Otto E. Sporrer the sum of $893 in cash and checks. In count II of the information defendant Nickel was charged with the violation of the Dangerous Weapons Control Law of 1923 [Stats. 1923, p. 695; Deering’s Gen. Laws, 1937, Act 1970], as amended, in that he had in his possession a sawed off shot gun, he having theretofore been duly convicted of the crime of forgery on January 19, 1931, in the Superior Court of Los Angeles County. In count III defendant Sehunke was accused of the violation of the Dangerous Weapons Control Law of 1923, as amended, in that he had in his possession an automatic pistol, he having theretofore been convicted of the crimes of robbery and burglary on March 30, 1934, in the Superior Court of Los Angeles County.

It was also charged that defendant Nickel had previously been convicted of the crime of burglary in the State of Texas

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on March 15, 1927, and of the crimes of forgery and robbery on January 12, 1931, in the Superior Court of Los Angeles County. It was also charged that defendant Schunke had previously been convicted of the violation of the Dyer Act in the State of Utah on May 10, 1929, and of the crime of burglary in the State of North Dakota on July 5, 1932, and of the crime of robbery on December 18, 1934, in the Superior Court of Los Angeles County. Both defendants admitted the prior convictions charged in the information. The jury found both defendants guilty of robbery, the charge contained in count I. Defendant Schunke was found not guilty on count III. The jury failed to agree on count II and this count was dismissed. Both defendants were sentenced to the state penitentiary and were declared to be habitual criminals. Both defendants have appealed from the judgments and from the order denying a new trial.

It is now contended that prejudicial error was committed when the clerk read to the jury the charges contained in counts II and III, in which possession of dangerous weapons was charged against defendants and in which it was set forth that they had previously been convicted of the specific felonies mentioned in the two counts. As required by section 1025 of the Penal Code, the clerk refrained from reading to the jury that part of the information which contained allegations of previous convictions of the felonies which had been admitted by defendants. Defendants were on trial, not only on count I but also on counts II and III. Bach of these counts contained two essential elements, the previous conviction of a felony and the possession of a dangerous weapon. It was necessary for the prosecution to establish both of these elements and it was also necessary for the jury to be informed of the issues which they were obligated to pass upon. The provisions of section 1025 were complied with when the clerk refrained from reading the allegations concerning the previous convictions which had been admitted. These provisions refer exclusively to cases in which previous convictions are alleged for the purpose of enabling the court to impose a greater punishment. They have no reference to cases in which the prior conviction is an essential element of the offense for which the accused is on trial.