People v. Marshall

CRAIG, J.

By information of the district attorney of San Diego County appellant was charged with having committed the crime of grand theft, in that he unlawfully and feloniously took from one U. L. Voris personal property

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consisting of $550, lawful money of the United States, and it was therein further charged that he had twice previously been convicted of a felony. He pleaded not guilty of grand theft, and not guilty thereof by reason of insanity, and denied the two prior convictions, though the latter were thereafter admitted, and after a trial by jury he was found guilty of grand theft as charged. Thereupon the jury were discharged, and three days later and on January 17, 1929, the date fixed by the court for pronouncing sentence, a motion for a new trial was presented, which, on motion of the defendant, was set for hearing on January 19th. On the date last mentioned the hearing upon said motion was again continued until January 26th, at which time it was denied, and the defendant was sentenced to the state prison for the term prescribed by law, and remanded to the custody of the sheriff. The principal grounds of appeal are errors alleged to have occurred during the trial, and that he was not duly convicted of the crime charged against him.

It is first urged as a ground for reversal that the trial court had no authority to sentence the defendant without a jury trial upon the issue of sanity, as presented by his separate plea, under the provisions of section 1016 et seq. of the Penal Code. It is contended on the part of the People that appellant is not in a position to advance objection, because throughout the trial he made no reference to the remaining plea, and made no objection to the dismissal of the jury, or the continuance of the date of sentence, and that he did not attempt to show any cause why judgment should not be pronounced, other than to present a motion for new trial, and that when sentenced he made no objection thereto. The Penal Code provides five kinds of pleas to an indictment or information, including “not guilty,” and “not guilty by reason of insanity.” If the defendant does not plead guilty he may enter these two simultaneously or either separately. The plea of not guilty puts in issue every material allegation of the People’s pleading, and upon such plea matters pertaining to a defense other than a former judgment of guilt or acquittal, once in jeopardy, and insanity, may be given in evidence. (Pen. Code, secs. 1016, 1019, 1020.) Section 1026 further provides: