People v. Forrester

CONREY, P. J.

Pursuant to count two of an information duly filed, defendant was convicted of the crime of violation of chapter 339, Laws of 1923 (Act 1970 of Deering’s Gen. Laws 1923), “committed as follows: That the said John Forrester, on or about the twenty-ninth day of January, 1931, at and in the county of Los Angeles, state of California, did wilfully, unlawfully and feloniously have in his possession and custody and under his control a certain firearm, capable of being concealed upon the person, the said firearm having a barrel less than twelve inches in length, the said John Forrester having theretofore been duly and legally convicted of a felony, to-wit, burglary, on the 24th day of April, 1922, by and before the superior court of the state of California, in and for the county of Los Angeles.”

[241]

It was further alleged that before the commission of said offense defendant had been convicted of the crime of burglary, and judgment of said superior court pronounced and rendered on the twenty-fourth day of November, 1922, and that defendant served a term of imprisonment therefor in a penal institution. On arraignment on March 9, 1931, the defendant regularly entered his plea of not guilty and admitted the prior conviction. On April 8, 1931, the case was tried before a jury, which found the defendant guilty. Thereafter, on April 13,° the date set for pronouncing of judgment and sentence, the defendant filed and presented a demurrer to the information, which demurrer was overruled and the cause further continued to April 17th, for hearing defendant’s motion for a new trial and motion for arrest of judgment. On April 17th said motions were denied and judgment pronounced by the court. The clerk’s minutes show that after the jury had been sworn to try the cause: “Information is read and plea stated. Motion of defendant’s counsel for dismissal, for reasons stated, is argued and denied.” The reporter’s transcript shows that after the jury had been sworn and the plea stated, defendant’s counsel moved that an order of mistrial be entered “upon the ground that the reading of the information has violated the rights of the defendant in the allusion and in informing the jury of the fact that this defendant had been guilty of a prior conviction when this defendant has admitted that fact solely for the purpose of his protection against its influence upon the jury”. The objection thus made was overruled by the court and thereafter the court, notwithstanding objections on the part of defendant, admitted evidence establishing the fact of the former conviction.