People v. King

CHIPMAN, P. J.

Information for burglary, alleging also two prior convictions of burglary of the second degree. Defendant was found guilty by the jury and appeals from the judgment of conviction and from the order denying his motion for a new trial.

The transcript contains the following entries:

“October 14th, 1902. Being called upon to plead the defendant pleaded not guilty as charged in the information.

The cause came on for trial October 27,1902, and out of the hearing of the jury panel the district attorney withdrew one of the two charges of prior conviction; The minutes of the court then show:

“Being called upon the defendant, out of the hearing of the jury panel, pleaded guilty to the prior conviction of felony, to wit: burglary of the second degree. . . . Thereupon the defendant excepts to the order of the court requiring the said defendant to plead as to said prior conviction, upon the grounds alleged in the demurrer herein. ’ ’ Thereafter a jury was formed and, being complete, “the information herein was read to the jury, no reference being made to the said prior convictions contained in said information when said information was read to the jury, and the plea of the defendant of not guilty as charged in the information was stated to the jury.”

It is claimed by defendant that it was prejudicial error for the court after arraignment (Pen. Code, sec. 1003) to call upon defendant to plead to the charge of prior conviction; that the court exceeded its authority, there being no statute authorizing the court to ask-the defendant whether or not he had suffered a previous conviction; that the particular offense and the previous conviction constituted one charge, a plea of not guilty to which puts in issue every material allegation therein contained, and that the plea of not guilty, first offered by defendant, was the only one admissible under section 1017

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of the Penal Code and that he had a right to rest upon that plea and could be convicted only by a verdict of a jury that tried him. (Citing cases.)

The record fails to disclose the grounds of defendant’s objection to pleading to the second conviction when called upon; indeed the record does not show that he objected; it shows only that he excepted upon the grounds stated in his demurrer to the information but the record does not contain the demurrer. There is nothing in the record sustaining defendant’s contention that he was compelled, over his protest, “to either confess or deny the said prior conviction.” So far as appears he voluntarily pleaded guilty when called upon. Waiving the apparent failure of defendant to affirmatively show error we do not think the court exceeded its authority, or, if it did, that defendant was in any degree prejudiced thereby.