People v. Johnson

Ross, J.: The defendant was charged, by information, with the crime of burglary and was convicted. The information also charged that he had been previously convicted of several other designated offenses. On his arraignment, the defendant admitted.that he had suffered the previous convictions as alleged, but entered a plea of not guilty to the charge of burglary. On the trial, after the case of the prosecution had been closed, the defendant, for the purpose of showing if he could that he did not commit the burglary, testified in his own behalf that he was not on the night it was committed, nor was he ever, in the house in which the offense was committed, but was at that time in bed in the house of one Morse, and that he did not commit the offense nor have any connection with its commission. On cross-examination, the district attorney asked the defendant this question: “ Were you not convicted of a felony in the Municipal Criminal Court of this city and county of San Francisco prior to this charge ? ” To which the counsel for the defendant objected, on the ground [572]that the question was “ incompetent, irrelevant, and immaterial, and not proper cross-examination; and upon the further ground that said former conviction is directly charged in the information in this case, to which defendant has answered, and that it is not a legitimate subject of inquiry before the jury.” The Court overruled the objections, and compelled the defendant to answer the question, which he did in the affirmative, to which ruling defendant reserved an exception.

When the Penal Code was adopted, provisions were inserted in it providing for the greater punishment, on conviction, of such persons as had been previously convicted of criminal offenses than was provided for similar offenses where there had been no such previous conviction; and by § 969 the manner of charging such previous convictions was pointed out.

By § 1158 of the same Code it was provided that “ whenever the fact of a previous conviction is charged in an indictment, the jury, if they find a verdict of guilty, must also find whether or not the defendant had suffered such previous conviction. ” In 1874 the Legislature amended this section so as to make it read as follows: “ 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 the charge, find whether or not he has suffered such previous conviction. The verdict of the jury upon a charge of previous conviction maybe: ' We find the charge of previous conviction true,’ or ‘ We find the charge of previous conviction not true,’ as they find the defendant has or has not suffered such conviction.”