People v. Hainline

SEAWELL, J.

On March 28, 1927, appellant, upon his plea of guilty, was convicted of the crime of burglary, and was granted probation. Having served the term of his probation he was permitted to withdraw his plea of guilty and enter a plea of not guilty on April 20, 1928, and the court thereupon dismissed the information pursuant to the provisions of section 1203, Penal Code.

On September 17, 1932, the appellant and one Don Guzman were jointly charged in two counts of the information filed against them with the commission of two. distinct burglaries, the first being committed on or about July 23, 1932, and the second on or about August 26, 1932. Upon arraignment, upon the request of defendant Guzman, his time to plead was continued to September 23, 1932. Appellant Hainline waived time to plead, and forthwith entered a plea of not guilty. The trial of the charges against him was set for October 5, 1932. On that day the district attorney’s motion to amend the information as to Hainline by incorporating in it a prior conviction of burglary against him pronounced on March 28, 1927, was granted. In all other respects the two informations were substantially alike. Said prior conviction of burglary was the same offense for which appellant had been granted probation on March 28, 1927, upon his plea of guilty as above described. Appellant was arraigned on the amended indictment, plead not guilty to both counts and denied that he had suffered the previous conviction. He went to trial and the jury found against him as to both counts, and also against Ms denial that he had suffered a previous conviction. Judgment upon the verdicts followed.

There is no merit whatever in the assignment of error to the effect that the evidence taken at the preliminary examination does not support the allegations of the information.

The next point raised by appellant has to do with the construction of the Probation Act. Probation is not,

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of itself, a right of a defendant. The act does not purport to repeal any provision of substantive criminal law. Probation is defined as an act of grace and clemency, which may be granted by the court to a seemingly deserving defendant, whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted.