People v. Thomas

Haynes, C. The defendant was convicted of burglary in the first degree and sentenced to imprisonment at San Quentin for twenty-five years, and this appeal is from an order denying his motion for a new trial. The information charged a burglary committed at the county of Alameda in October, 1894, and also charged a prior conviction of the crime of burglary in the superior court of said county on October 15, 1890.

Upon arraignment the defendant confessed the prior conviction, and, as to the offense charged in the information, pleaded not guilty. Upon the trial a witness called on the part of the prosecution was permitted, over the objection of defendant, to testify to the following conversation which he had with the defendant after his arrest and while the witness had him in custody, namely: “I says to the defendant, Ain’t it a fact that you served two years in San Quentin, from Alameda county, for burglary? He said: No, I served two years in Folsom for burglary.” The ruling of the court was duly excepted to, and is the only error relied upon.

Section 1158 of the Penal Code provides that the jury, if they find a verdict of guilty of the offense with which the defendant is charged, " must also, unless the answer of the defendant admits the charge, find whether or not he has suffered such previous conviction.”

Subdivision 1 of section 1093 of the Penal Code is as follows: “If the indictment or information be for felony, the clerk must read it, and state the plea of the defendant to the jury; and, in cases where it charges a [43]previous conviction, and the defendant has confessed, the same, the clerk, in reading it, shall omit therefrom all that relates to such previous conviction.”

From these provisions it is clear that if, upon arraignment, the defendant denies the prior conviction alleged in the indictment or information, that issue, as well as the issue raised by his plea of not guilty of the principal charge, must be submitted to the jury; but if, upon the arraignment, the defendant admits the previous conviction, all information touching a prior conviction must be withheld from the jury. The object had in view in charging a previous conviction is not for the purpose of evidence as to the commission of the offense upon which the defendant is to be tried, but for the information of the court in determining the punishment to be imposed in case of conviction, as is clearly shown by sections 666 and 667 of the Penal Code.