The record-union., 1891-03-06

A. Johnson.
DEPARTMENT TWO.
TIE PEOPLE, Respondent,
LARRY WHEATLEY, NO. Zo.'oo.
Appellant.
The defendant was charged with the
CRIME OF burglary, and with having suf-
Tered prior convictions of burglary and
pelt larceny. The information was filed
IN the Superior Court of the City and
county OF San Francisco, ON September
~, 1889, and on the same day the presid-
ing Judge of the Court assigned the case
1or trial to Hon. w. 7. Wallace, Judge Of
Department No. 6. The defendant was
arraigned in Department No. 6 on Sep
fember 9th, and pleaded not guilty of
the crime charged in the information"
The record then shows the following:
little of court and cause.
"October3, 1889, cause transferred to De-
partment No. T."
t'Title of court and cause.
department No. II October 9, 1889.
Present: Hon. ID. j. Murphy, Judge.
'"The defendant, having heretofore been
Grraigned and pleaded not guilty, came
into court, and having been called upon
and arraigned upon the prior convictions
herein, now pleads guilty thereto.''
Subsequently, as the record states, the
cause came on regularly for trial in De-
partment No. II, the defendant and his
counsel being present in court, and at
the conclusion of the trial q verdict was
retarned by the jury, finding the defend
ant guilty of burglary in the second de-
gree. He moved for new trial and his
motion was denied. Judgment was then
entered that he be punished by imprison-
ment in the State Prison for the term of
eight years. From this judgment and
the order denying him new trial he ap-
peals.
u1bo 6re+ ,,o;,+ ,D,,lo Gov - xo,,o.coI
s-of the judgment is, that the case was not
tproperly tried in Department No. u. 1t
lis claimed that, inaSnnuch as the minutes
of the court show that the cause was as
signed to Judge Wallace for trial, Judge
Murphy had no authority to try it, in the
absence of a showing in the record OF q
reassignment by the presiding Judge,
and of consent on the part Of Judges Wal
lace and Murphy that it be reassigned.
But the minutes of the court do state that
the cause was transferred to Department
No. II; and they do not state that any OBJ
lection was made by the defendant to the
transfer or the place of trial. Under these
circumstances it must be presumed,
nothing appearing to the contrary, that
the transfer was properly made by the
presiding Judge.
2. 1t is contended that when the defend
ant was arragned in Department No. 6,
and pleaded mot guilty. his plea put in
issue the prior convictions, and that, hav-
ing once pleaded, no other plea could be
made or have place in the record. until
the first plea was Withdrawn or set aside.
And it is said that the first plea was not
Withdrawn, and hence. as there was no
verdict as to the prior convictions, the
punishment imposed was greater than
Z the law authorized.
7. There can be no doubt at this time that
one may be charged in an indictment or
! information with some particular offense
n with hoy-
victions of other offenses, and may be ar
raigned thereon under Section 9oS of the
Penal Code. He may plead simply not
guilty, and thus put in issue every ma
terial allegation of the indictment or in
formation (Pen. Code, Section 1919; Or he
may plead not guilty of the principal Of
tense charged. and confess the previous
convictions. People VS.. Lewis, 64 Cal.
40l; People VS.. Brooks, IS Cal 295; eX
parte Young All Cow, 73 Cal. 438.) If he
confesses the previous convictions, then
the clerk, in reading the Indictment or
information to the jury, must omit there
from all that relates to such previous con-
victions, and no testimony in regard to
them can be offered, or reference to them
be made during the trial. Pen. Code,
Section 1893, subdivision l; People VS..
Meyer. 70 Cal. 54S; People VS.. Sansome,
S4 Cal. 449.)
And there can also be no question that.
when one is charged with prior convic-
ion and has pleaded simply not guilty,
pc may be permitted afterwards, in the
discretion Of the court, to withdraw his
1olea as to that charge and enter plea OF
guilty thereof. In People VS.. Lewis,
saprd, the defendant was indicted for
grand larceny and charged with a pre-
Vious conviction of like otfense. He
was arraigned and pleaded not guilty OF
the oiense charged. On the trial he Of
fered to plead guilty to the charge of pre-
infi ha r+ l,n
offer. Speaking of this ruling, this court,
by Mr.. Justice Thornton, said: Having
then regularly pleaded, the court was not
bound afterwards on the trial to accept
the plea of guilty of the previous conyic-
tion 1t may be in its discretion 60 do so
or not-not discretion, however, to be
arbitrarily exercised, but one in accord
ance with law and its analogies. If the
court abused its discretion i'll SO ruling, a
reversal would follow, but we cannot see
that it went beyond what the law per-
mitted."
Here the record shows that the defend
amt, after pleading not guilty, came again
INTO court and pleaded guilty OF tie
prior convictions. He had q right to dc
this, with the courts consent, and his
action, so far as we can see, was voiun-
tary: the object doubtless being to keep
from the jury on the trial all knowledge
of the prior convictions, and thus secure
better chance for an acquittal of the
main charge.
The case of People VS.. King ga Cal. 33s),
cited by appellant, cannot aid him. That
case was decided upon the theory that,
since the repeal of Sections 800 and 1925 OF
the Penal Code, when person is charged
with criminal offense and a previous
conviction, mis- admission of the previous
conviction is not sufficient, but he must
plead to both charges, and both must be
proved on the trial and passed upon by
the jury. That theory has not since been
accepted by the court, and in effect the
case has been overruled. See cases above
cited
3. It is said that the record shows
srffirm2tiyely that the court charged the
silfy orally, and fails to show that the
charge was taken down by the phono-
graphic reporter. This is assigned as
error and urged as cause for a reversal of
the Judgment. But the presumption is
that the reporter performed his duty and
took down the charge in shorthand, and
that he must have done so very clearly
appears from the fact that the full charge
rs brought here in the transcript, cover
ing ten printed pages.
T. II is claimed that defendants mo-
ton for new trial should have been
granted, because the jury, after retiring
to deliberate upon their verdict, separated
without leave of the court. 1t appears
from the affidayits, read OH the hearing of
the motion for new trial, that when the
juryleft the jury-box and started Tor the
jury-rooIn eleven of them went into the
room, and one went into water-closet
adjacent tothe courtroom accompanied
by the baiGff. he was gone about hye
minutes, and while absent from the other
Jurors, held no conversation with any
person, and nothing was said about the
case III his hearing. During his absence