People v. Huffman

STEPHENS, J.

By information, the District Attorney of Los Angeles County charged the defendant with assault with a deadly weapon, in violation of section 245 of the Penal Code, in that on or about April 22, 1965, he did commit an assault with a deadly weapon upon Gus Bowie, Jr. It was also alleged that defendant had been convicted of grand larceny and served a prison sentence in the State of Oklahoma. Defendant pleaded not guilty and denied the prior conviction as alleged. Jury trial was waived personally by defendant and all counsel. Defendant was found guilty of assault with a deadly weapon. No disposition was made of the prior conviction.

The recognized expertise of the trial judge compels us to the conclusion that he knew the result of not ruling upon the count containing the charged prior felony. Since no finding was made by the court as to the alleged prior conviction as required under Penal Code section 1158, the court’s silence operates as an acquittal of the charge of the prior conviction.

(People

v.

Eppinger,

109 Cal. 294 [41 P. 1037];

People

v.

Ahouse,

162 Cal.App.2d 586 [328 P.2d 227].) Thus the present conviction must be treated as a conviction upon a first offense.

(In re Hall,

88 Cal.App.212 [263 P. 295].) This was the ease. A probation report was ordered, probation denied, and defendant sentenced for the term prescribed by law in the state prison.

Defendant next contends that there is substantial conflict in the testimony. The victim, Gus Bowie, testified that defendant entered the house where they both lived, with Bowie’s shotgun, and after verbal threats and a scuffle, shot Bowie in the leg. Defendant contends that although there was an argument, the shooting was an accident, the gun discharging as it fell from a chair. There was also testimony by Bowie that defendant urged Bowie to tell the police it was an accident and that Bowie complied, fearing that to do otherwise would delay defendant’s summoning help.

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