People v. McGregar
Before: McFarland
Synopsis
Criminal Law—Burglary — Previous Convictions—Arraignment. — Upon the arraignment of a defendant charged with burglary and previous convictions, it is not error for the court to ask him whether he had suffered the prior convictions charged against him in the information.
Id.— Reading of Indictment —Presumption —Performance of Official Duty. —Where the defendant has confessed the former convictions, the presumption is, that the clerk performed his duty in reading the indictment to the jury, and omitted to read that part of the indictment which related to the prior convictions, and this presumption is not overcome by a statement in the record “that the information charging the defendant with the above crime wat read, and plea of not guilty stated to the jury-”
Id. —Attempt to Commit' Burglary — Sentence — Former Convictions. — Where the record shows that the defendant had suffered former convictions, a sentence of ten years’ imprisonment for an attempt to commit burglary does not exceed the maximum term allowed.
ID.—Oral Charge — Shorthand Reporter — Presumption upon Appeal. — Where the contrary does not appear in the record, it will be presumed that the law was obeyed, and that the oral charge of the court was taken down by the shorthand reporter.
Id.—Degree of Burglary — Statement of Testimony.—A statement by the court in its instructions that the testimony showed that it was three or four o’clock in the morning when the attempt was made, in connection with a charge that it would be necessary to find the degree oí the crime, and that if the attempt was made in the night-time, it would be an attempt to commit burglary in the first degree, could not have prejudiced the defendant, where the testimony shows without conflict that the attempt was made in the night-time.
Id. —Proof of Venue—Streets or San Francisco. — Where the indictment charges that the offense was committed on a certain street in the city and county of San Francisco, proof that the crime was committed on that street, in connection with which several of the principal and best-known streets of San Francisco are mentioned in the testimony, is sufficient to warrant the jury in sustaining the venue, although the witnesses did not testify directly that any of the streets named were in San Francisco.
Id. — Judicial Notice — Circumstantial Evidence.—The question as to the location of the streets named by the witnesses is not a strict question of judicial knowledge, but is, whether, under all the circumstances of the case, there was sufficient evidence to warrant the jury in concluding that the crime was committed in San Francisco.
McFarland, J. The defendant was convicted of an attempt to commit burglary in the first degree, and appeals from the judgment, and order denying a new trial. Several points are relied on for a reversal of the judgment.
1. It was not error for the court to ask the defendant upon his arraignment whether he had suffered the prior convictions charged against him in the information. (People v. Wheatley, ante, p. 114, and cases there cited.)
2. It does not appear that the clerk read to the jury that part of the indictment which charged defendant with prior convictions. As the defendant had confessed the former convictions, the presumption is, that the clerk performed his duty as prescribed in section 1093 of the Penal Code, and omitted that part of the indictment [142]which related thereto; and this presumption is not overcome by anything in the record, which merely states that “ the information charging the defendant with the above crime (not crimes) was ¡read and plea (not pleas) of not guilty stated to the jury.” No objection was made at the time, and it is quite clear that there is no affirmative showing of error on this point.
3. The sentence — ten years — does not exceed the maximum term of imprisonment; for the record shows that the defendant had suffered former convictions.
4. Assuming that the record must show a recital of the matters referred to in section 1200 of the Penal Code, and that the section is not merely directory, still it appears from the record in this case that the directions of said section were quite fully complied with.
5. It does not appear that the oral charge of the court was not taken down by the reporter; and where the contrary does not appear, it will be presumed that the law was obeyed.
6. The jury having first returned a verdict of “guilty as charged,” the court informed them that it would be necessary to find'the degree of the crime, and that if the attempt was made in the night-time, it would be an attempt to commit burglary in the first degree; and in that connection the court told the jury that “ the testimony was, it was three or four o’clock in the morning.” It is contended that this language last quoted was erroneous. It is not necessary to determine whether the use of this language was the mere exercise of the constitutional power of a judge to “state the testimony” or a violation of the mandate that “judges shall not charge juries with respect to matters of fact” (Const., art. 6, sec. 19); for the only evidence upon which defendant could have been convicted at all showed, without conflict, that the attempt was made in the night-time. Defendant therefore could not have been prejudiced by the remark of the court.
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