People v. Carlton

Morrison, C. J.: The appeal in this case is taken upon the judgment roll alone, and the ground relied upon for a reversal is, that the punishment was in excess of that authorized by law. The prosecution was by information, and the conviction was of the crime of petit larceny. The information charged a previous conviction of a similar offense, and the judgment of the Superior Court was, “ that the said Joseph Carlton be punished by imprisonment in the State prison of the State of California for the term of four years.”

Section 666 of the Penal Code provides, that “ every person who, having been convicted of petit larceny, or of an attempt to commit an offense which if perpetrated would be punishable by imprisonment in the State prison, commits any crime after such conviction, is punishable as follows; * * *

[560]“ 3. If the subsequent conviction is for petit larceny, or for an attempt to commit an offense which if perpetrated would be punishable in the State prison, then such person is punishable by imprisonment in such prison not exceeding five years.”

The record shows that upon the arraignment of the defendant he pleaded “ not guilty of the offense charged in the information,” and as to the prior conviction, “that it is true.” On this appeal, two points are made on behalf of the appellant: 1st, that the provisions of the Penal Code on this subject do not apply, except in prosecutions by indictment; and 2nd, that the question of prior conviction should have been submitted to, and should have been passed upon by, the jury. We will first consider the second point.

By § 1158 of the Penal Code it is provided, that, “ whenever the fact of a previous conviction of another offense is charged in an indictment, the jury, if they find a verdict of guilty of the offense for which he is indicted, must also, unless the answer of the defendant admits of the charge, find whether or not he has suffered such previous conviction.” And § 1093 of the same Code provides, that, “ if the indictment be for a felony, the clerk must read it, and state the pica of the defendant to the jury; and in cases where the indictment charges a previous conviction, and the defendant has confessed the same, the clerk, in reading such indictment, shall omit therefrom all that relates to such previous conviction.”

It is clear, from the foregoing sections, that it was not necessary for the jury to pass upon the question of previous conviction, for the Code provides that when the defendant has confessed the same, that part of the indictment that charges a previous conviction shall not he read to the jury.