People v. Mock Don Yuen

FINCH, P. J.

By information filed in the trial court on the fifteenth day of June, 1923, the defendant was accused of the unlawful possession of a preparation of cocaine on the seventh day of June, 1923. The information further charged that on the twenty-seventh day of June, 1923, the defendant was convicted of the crime of the unlawful possession of a preparation of cocaine. The defendant entered a plea of not guilty and denied the prior conviction. During the impanelment of the jury that part of the information which charged the prior conviction was read in the presence of the prospective jurors and frequent reference thereto was made by the district attorney and the court, to all of which counsel for defendant objected. When reference was first made to the prior conviction, during the impanelment of the jury, counsel for defendant said: “We will withdraw our former plea, and we will plead guilty to the former conviction.” The court replied: “Then he will have to be rearraigned. He has already been arraigned and entered a plea of not guilty to the former conviction.” Throughout the impanelment of the jury counsel for defend

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ant continued to object to any reference to the prior conviction, but made no move to withdraw the denial thereof or to have the defendant admit the same. After the jury was impaneled the clerk proceeded to read the information. It seems then to have been discovered for the first time that the prior conviction was charged in the information to have been had at a time subsequent to the filing thereof. The district' attorney thereupon asked leave to amend the information by changing the date of the prior conviction from June 27, 1923, to June 27, 1922. Counsel for defendant said: “I understand that conforms to the files.” The information was amended accordingly. Counsel for defendant said: “Now, we will plead guilty, since it has been corrected,” evidently meaning that the defendant would admit the prior conviction. The court answered: “The defendant is the only one that can enter the plea of guilty.” A little later the court asked counsel if the defendant desired to withdraw his denial of the prior conviction and admit the same. Counsel replied: “We want to stand as not saying one word. We haven’t a word to say; we are in the hands of the court.” The district attorney then made his opening statement to the jury, in which he stated that the prosecution expected to prove the alleged prior conviction. Counsel for defendant objected to the statement and assigned it as “prejudicial error.” Finally defendant withdrew his denial of the prior conviction and admitted it. Thereafter the district attorney referred to the prior conviction in a question asked the defendant on cross-examination. The court sustained defendant’s objection to the question and instructed the jury “to disregard any statement about any prior or previous conviction.” The defendant was convicted and prosecutes this appeal from the judgment and the order denying his motion for a new trial.