People v. Rogers

KOFORD, P. J.

This is an appeal from a judgment of conviction of violating section 2 of chapter 339 of the Statutes of 1923, making a felony of carrying concealed weapons by one previously convicted of a felony. The information under which the defendant was tried charged three prior convictions of felony,—the first, July 4, 1918; the second, burglary at San Francisco, January 26, 1922, and the third, carrying concealed weapons in Humboldt County, March 20, 1924. Upon arraignment the defendant denied the first prior alleged but admitted the second and third.

Notwithstanding these pleas the clerk in reading the information to the jury read the second prior which the defendant had admitted instead of reading the first prior which the defendant had denied. In submitting the case to the jury, the court submitted forms of verdicts upon the second and third priors. The reading of the information by the clerk in the manner stated was a violation of Penal Code, section 1025, and of subdivision 1 of the Penal Code, section 1093. In submitting to the jury as an issue the confessed prior convictions alleged second and third in the information, the court violated sections 1025 and 1158 of the Penal Code. That the foregoing proceedings at the trial amounted to error admits of no doubt, but whether such error requires a reversal of the judgment depends upon whether the record shows that a miscarriage of justice has occurred.

The defendant also urges as ground of appeal the cross-examination of the defendant, who was a witness in his own behalf.

“Q. Have you ever been convicted of a felony? A. I have.

“Q. What one? A. Here in San Francisco.

“Q. What one? A. Second degree burglary.

“Q. What else?

“Mr. Whitthome: I will have to object to it as incompetent, irrelevant and immaterial.

“The Court: Overruled.

“Mr. Skillin: What else? A. Concealed weapon.

“<j. What? A. Humboldt county, 1924.

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