People v. Hobbs

PULLEN, P. J.

Appellant was charged with petit theft in stealing two gang plows, and also with having suffered a prior conviction of petit theft, and a prior conviction of robbery.

In a second information defendant was charged with grand theft, a felony, in stealing a disc plow, and was therein charged with a prior conviction of robbery.

He entered pleas of not guilty to each of the two informations, except that in both he admitted the prior convictions.

The two cases were consolidated for trial, and the jury found the defendant guilty of petit theft as charged in the first information, and guilty of petit theft, an offense included in the charge contained in the second information.

[9]

This appeal is from the judgment and from the order denying a new trial. The only ground for reversal is based upon the fact that although upon his arraignment defendant admitted the prior convictions alleged in the informations, the clerk of the court, following the impanelment of the jury, read the first count of the first information in its entirety and without eliminating therefrom the words, “with prior conviction of petit theft”.

Immediately upon the completion of the reading of the information, defendant moved for a mistrial and a discharge of the jury on the ground that it was error for the clerk to make any reference to the prior conviction. This motion was denied, but at the conclusion of the trial, the court, in its instructions to the jury, charged them upon this matter as follows:

“When Count One of that Information was read to you, it being a formal charge, it contained certain language which does not concern you in this matter at all. It referred to petty theft, known as a felony and it was this: ‘The said William Hobbs is accused by the District Attorney of and for the county of Yolo, State of California, by this amended Information, of the crime of petty theft, with prior conviction of petty theft, a felony, committed as follows:' Any reference to a prior conviction has nothing to do with your consideration at all. You must not consider it in the least. You would be violating your oath if you did. The only question for you to decide is whether or not William Hobbs did, on or about the 18th day of July) 1939, in the County of Yolo, State of California, then and there being, did then and there wilfully, unlawfully and feloniously steal, take and carry away one four gang P and 0 plow and one three gang P and 0 plow, all of the value of $100.00 in lawful money of the United States, and the personal property of M. E. Dole, and you should only consider the evidence submitted to you here in court on that matter. ’ ’