The record-union., 1891-03-09
opinion the Judgment and order are af-
n
Filled March 2, 1911
DEPARTMENT TWO.
PEOPLE, Respondent,

PEOPLE, Respondent,
VS.. No. 20,7l2.
JAMES BARTON, Appellant.
The defendant was convicted by the
, jury which tried him of burglary in the
first degree. He pleaded not guilty as to
that charge, but admitted prior convic-
ton of grand larceny as charged in the
information.
The notice of appeal states that the ap-
peal is taken from the Judgment, from an
order denying motion in arrest of judg-
meIt, and from an order denying mo-
ton for new trial. CTR. fol. 2S.) But it
nowhere appears that any such motions
were ever made or acted upon.
There is no bill of exceptions in the
record.
The first point made for a reversal af
the Judgment is, that the time appointed
for pronouncing it was not at least two
days after verdict, and is therefore in vio-
ktion of Section u9l of the Penal Code
The defendant seems to have made nc
objection at any time to this action of the
trial court, and under the decision of the
appellate court in People VS.. Mess (65 Cal.
1I4) the point made is without merit
1t is further claimed that the offense be-
ing felony. error is shown upon the
minutes of the court, in that it is there
stated that the charge to the jury was
given orally. 1t is true that Sub 6 Sec
ton 1903 of tho Penal Code requires that
where the charge in such case is not
given in writing 1t must be taken down
by the Photographic reporter. But it is
not made to appear here that it was not so
taken down, and the, presumption must
be that it was. The defendant must show
error affirmatively. People VS.. Tonielli,
81 Cal. 279; People VS.. Carroll, so Cal. l53:
People VS.. Marks, Y Cal. 46; People VS..
HUFF, ~ Cal. LII; People VS.. Leong Sing,
n Cal. ll9; People VS.. Cline, So Cal. 377l.
1t is said that the judgment was illegal
ly pronounced because it does not appear
from the Judgment roll that the defend
amt was. informed, as he should have
been, under Section 1900, p. c., by the
court, or under its direction, of the nature
of the charge against him, or of his plea,
or of the verdict. Conceding that it ap-
pears to have been held iii People VS..
Murback i64 Cal, S72) that these
preliminary statements are neces-
sary, and that they form no part of
the Judgment pronounced, yet it
does not appear in the record that such
statements were not made, and the pre-
sumption must be INDUCED that they
were, unless the appellant has shown to
the contrary, which he has not done.
The prior conviction of larceny was
confessed by the defendant. (Fol. I5.)
The jury then, passed only upon the
charge of burglary. (Fol. 17-1S.) "The
Judgment follows the verdict and confess
sion of the defendant, and is in all re-
spects regular" as we think. Tex parte
Young All Cow, 73 CAL, 442.) The admis-
sion of prior conviction of larceny here is
not shown to have been brought out by
any question of the court, but appears, so
far as the record shows, to have been vol
UNFAIRLY made when the defendant was
called on to plead. (Foll15) AS before
said, it is for the appellant who claims err
ror to show it.
We perceive no prejudicial error. and
advise that the Judgment be affirmed.
FoorE, c.
We concur:
BELCHER, c..
HAYNE, G.
THE COURT.