People v. Lewis

Thornton, J. In this action the defendant was indicted for grand larceny, and in the indictment was charged with a previous conviction of a like offense. The defendant was arraigned and pleaded "not guilty to the offense charged in the indictment.”

The continuance was properly refused. It did not seem that the attendance of the alleged absent witness could have been procured in a reasonable time. (People v. Cleveland, 49 Cal. 580; Same v. Ah Yute, 53 Cal. 613.)

On the trial, the defendant offered to plead guilty to the charge of previous conviction. The court denied the offer. It is urged that this was error. We cannot accord with this view. The nine hundred and sixty-ninth section of the Penal Code, specially relating to the arraignment when a previous conviction was charged, had been repealed before the arraignment was had. The arraignment was had in May, 1882, while the section was repealed in 1880. (See Desty’s Ed. of Pen. Code of 1881, § 969.) Under these circumstances the arraignment had to be made under the statute as it was left unrepealed. (Pen. Code, § 1017.) Under this section the defendant was properly arraigned, and on such arraignment he pleaded not guilty as charged. This we regard as a compliance with the statute.

Having then regularly pleaded, the court was not bound afterwards on the trial to accept the plea of guilty of the previous conviction. It may be in its discretion to do so or not— not a discretion, however, to be arbitrarily exercised, but one in accordance with the principles of law and its analogies. If the court abused its discretion in so ruling, a reversal would follow, but we cannot see that it went beyond what the law permitted. Viewing the question as one addressed to the discretion of the court is the most favorable that can be taken for the defendant, and in that yiew there is no error. We will add here that the answer of defendant in section 1158 of the Penal Code is the plea which he tenders on arraignment. (People v. King, 64 Cal. 338.)

It is stated that the court, in charging the jury, read a certain [404]section of the Penal Code, the number of which is not given, and therefore it is in error. The bill of exceptions states what occurred in the following words: “ The Court—I will instruct you, gentlemen, in the language of the statute. [Reads §- of Pen. Code.] Larceny in other cases is petit larceny.”

The words underscored are the words used in section 488 of the Penal Code. It does not appear that more than one section was read, and the language of one section is given in the chayge. Does this disclose error? We cannot say that it does. It may be that the court read other sections, but this does not appear. Error must be deducible from the record. If it does not appear it does not exist; and it must be recollected that all intendments are in favor of the correctness of the action of the court below.