The record-union., 1891-03-09

taken of the distance of the building in
sured from other buildings. And We do
not see why he should have done so I'M
less hewas acting in the interest of the
company. The inference that he was so
acting is not rebutted by any evidence.
And if he was employ ed by the company,
1t was not necessary for the plaintiff to
produce evidence to the company of such
fact. ;.
In relation to the foregoing the court
charged the jury as follows:
Evidence has been offered to show
that at the time plaintiff furnished proofs
OF loss to the company, the attorney for
plaintiff stated that the reason why the
certificate attached to the proofs was not
made before the nearest notary was be-
cause Mr.. Turner, the nearest notary,
had refused to sign it, stating to the
plaintiff that he had been engaged for the
company and could not do it. 1t is the
duty Of the court to determine whether
by so doing the plaintiff furnished to the
company reasonable evidence that the
refusal of Mr.. Turner was not induced
by any just grounds of disbelief in the
facts necessary to be certified. If you
believe this evidence. the court instructs
you that the reason given to the company
for not producing the certificate of Mr..
Turner, the nearest notary, was sufficient
and that the certificate furnished was
sufficient compliance with the require
| ments of the policy as modified by the
law"
There may have been slight inaccuracy
in the statement of the testimony i'll this
instruction. But. as above stated, if Tur-
ner was employed by the company to
take measurements, etc, as is to be in
ferred from the evidence, we think that
of itself was a reason why the plaintiff
was relieved of the necessity Of getting
his certificate 10 the justice of her claim;
and that it was not necessary TO inform
| the defendant of the fact.
In this view there was nothing to be
waived, and all that part of The case re-
lating to waiver may be regarded as sur
| plusage.
We do not see any conflict in the in
structlons or any material error in rela
| ton thereto, or in the record Our opin-
ion is that the Judgment and order deny
ing new trial should be affirmed.
BELcIIER, c.
We concur:
VAN CLIEF, c.,
HAYNE, C.
THE COURT.
For the reasons given in the foregoing
opinion, the judgment and order denying
a new trial are affirmed.
Filled March 2, 1911
DEPARTMENT TWO.
THE PEOPLE, Respondent,
VS.. ~, % 49,,
CHARLES JOHNSON, NO @o,'ll.
Appellant
The defendant was charged in the in
formation filed against him with the
crime of burglary, and with f prior con-
viction of grand larceny. He was tried
and found guilty OF burglary in the
second degree. Judgment was entered
that he be imprisoned in the State Prison
for the term of ten years. From this
judgment he has appealed, but the record
brought up contains no bill Of exceptions
and none of the instructions given to the
jury. -
In support Of the appeal it is argued
that the defendant, as shown by the
record, was arraigned only for the:crime
of burglary and pleaded simply not
guilty; that this plea put in issue every
allegation of the information, and upon it
he was tried and found guilty simply of
burglary in the second degree; that as
there was no verdict as TO the prior con-
Nlction, it could not be taken into con-
sideration in proflouncing judgment, and
hence, as the maximum term ofimprison-
ment authorized by the statute in such a
case was five years penal Code, Sec 46l),
the Judgment was Illegal and should be
reversed.
1t is true that the record as originally
filed in this court showed no admission
legged prior conviction, but on suggestion
of a diminution of the record, and amend
ment duly certified was subsequently
filed, showing that after the appeal was
taken the trial court amended its record
of the case 3,ata,c pro tatac, so as to show that
on the day of the trial the defendant adj
mitted the prior conviction set forth in
the information and withdrew his former
denial thereof The record, therefore, as
now presented, does not support the ar
gument.
The defendant clearly had the right at
any time to withdraw his plea of not
guilty to the charge of prior conviction.
and to confess the same; and. having
done so, the jury had nothing to say or
find in regard to it, The verdict covered
the only issue submitted to the jllry. and
upon it the court was. authorized to fix
the penalty. as it did, at ten years. inn;
prisonment. penal Code, Sec. 666; Peo-.
pie VS.. Brooks, 65 Cal. 3O0.)
1t is also argued that the record affirm
atively shows error, because it appears
therefrom that the verdict was rendered
on January Is, 1890, and the court there
upon appointed January 18th as the time
for pronouncing Judgment, and on the
last named day pronounced the Judgment
appealed from: It is said that, under Sec
for pronouncing Judgment, in cases of
felony, must be at least two days after
the verdict, and that the minutes show
that two full days could not have inter-
vened.
A sufficient answerto this point is that
one found guilty OF. a felony may waive
the time which the code says must elapse
between the verdict and sentence, and
may consent that judgment be pro-
nounced Immediately. People VS.. Rob-
inson, 46 Cal. a. Here it does not ap-
pear that the defendant ever made any
objection in the court below on account
of this alleged shortness of time, and he
must therefore be held to have assented
to it. In People VS.. Mess (65 Cal. 174,) the
same point was made, and, as we think,
correctly held untenable.
1t is further said that the record shows
affirmatively that an oral charge was
given by the court to the jury, and that
this was error, calling for reversal of the
Judgment. But the giving of AN oral
charge is not necessarily error. The stat
ute says: "The Judge may then charge
the jury, and must do so on any points
pertinent to the issue, if requested by
either party; and he may state the testi-
mony and declare the law. If the charge
be not given in writing it must be taken
down by the photographic reporter"
Penal Code, Sec. 1893, sub. g. Here it
does not appear that the charge COM
planned of was not given at the request of
the defendant, nor that it was not taken
down by the photographic reporter. 1t
will be presumed, therefore, that it was
so taken down.. The well-settled rule is
that error is not to be inferred but must
affirmatively appear in the record. (Peo-
pie VS.. HUFF, ~ Cal. ll7 People VS.. Leong
Sing, n Cal. III; People VS.. Cline, IS Cal.
374.J
Another point made for reversal is.
that the Judgment was illegally pro-
nounced, for the reason that the defend
ant WAS not Informed nv fho oo,,rt ~.