46. Same-Ownership of property not otherwise sufficiently described.—Where indictment for larceny did not sufficiently describe property stolen, and alleged ownership in "Samuel F. Merritt," and it was proven at trial that true name of owner was "Stephen F. Merritt," and court instructed jury to acquit, this acquittal is not bar to subsequent indictment for stealing same property of Stephen F. Merritt, as allegation of ownership, property not otherwise being sufficiently described, was necessary, and variance was therefore material.-People v. Hughes, 41 Cal. 234, 236. 47. Same-Party having two names.Name of owner of stolen property is only required to identify transaction, so that defendant by proper plea may protect himself against another prosecution for same offense, and if it is shown that name of owner as charged in information was name under which he did business, and only name by which he had been known, fact that he had another name-personal name -does not constitute material variance.People v. Leong Quong, 60 Cal. 107, 108, 4 Am. Cr. Rep. 334. § 1022. WHAT IS A FORMER ACQUITTAL. Whenever the defendant is acquitted on the merits, he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment or information on which the trial was had. History: Enacted February 14, 1872, re-enactment of § 306 Criminal FORMER ACQUITTAL-WHAT IS. 1. Acquittal a bar, when. 2. Conviction of lesser offense. 3. Discharge after void verdict. 4. Same-Motion to discharge. 5. Erroneous instruction to acquit. 6. Same-Direction. 7. Error in rendering verdict. an 1. Acquittal a bar, when. Where the offense on trial is a necessary element in, and constitutes essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution of the other.People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090. 2. Conviction of lesser offense. It is settled by a long line of decisions in this state that a verdict of manslaughter and judgment entered thereon operate as a matter of law to acquit the defendant of all higher offenses, to wit, murder in the first degree and murder in the second degree. People v. Huntington, 8 Cal. App. 612, 614, 97 Pac. 760. 3. Discharge after void verdict.-Where jury renders void verdict, and is then discharged without consent of defendant, it operates as an acquittal.-People v. Curtis, 76 Cal. 57, 59, 17 Pac. 941. 4. Same-Motion to discharge.—Where defendant is convicted under void verdict, and makes motion to be discharged after verdict is received and recorded, he is § 1023. 5. Erroneous instruction to acquit.—If, through misdirection of judge in matter of law, verdict is improperly rendered, as where court "instructs" jury to acquit instead of "advising them to do so," under section 1118, ante, defendant has been in jeopardy, and verdict can never be set aside.-People v. Horn, 70 Cal. 17, 19, 11 Pac. 470; People v. Stoll, 143 Cal. 689, 697, 77 Pac. 818 (Beatty, C. J., concurring); People v. Hill, 146 Cal. 145, 146, 79 Pac. 845. As to court advising jury to acquit, see, post, § 1118 and note. 6. Same-Direction.-Where some evidence has been introduced on behalf of prosecution, and, after adverse ruling upon some further evidence, prosecution rests, and court erroneously directs jury to acquit, instead of advising them to do so, erroneous acquittal has effect of preventing retrial of defendant, and judgment will be affirmed, as defendant could not be tried again, and reversal could avail nothing in interests of justice.-People v. Roberts, 114 Cal. 67, 69, 45 Pac. 1016. 7. Error in rendering verdict.-If party has been charged with offense by valid indictment, and has been acquitted by verdict of jury, he can not be tried again for same offense, no matter by what mistakes or errors on part of court, jury or prosecution acquittal was obtained.-People v. Webb, 38 Cal. 467, 479. CONVICTION OR ACQUITTAL ON AN INDICTMENT, ETC., FOR A HIGHER OFFENSE, EFFECT OF. When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal, or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information. History: Enacted February 14, 1872, re-enactment of § 307 Criminal ORDINANCE PUNISHING SAME ACTS. for same acts. In re Sic, 73 Cal. 142, 148, 14 Pac. 405. 2. Offenses different. Where offenses under section of this code and under municipal ordinance are different, there is no violation of constitutional inhibition against putting one twice in jeopardy for same offense.-Ex parte Hong Shen, 98 Cal. 681, 683, 33 Pac. 799. § 1024. DEFENDANT REFUSING TO ANSWER, PLEA OF NOT GUILTY TO BE ENTERED. If the defendant refuses to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered. History: Enacted February 14, 1872, re-enactment of § 308 Criminal REFUSAL OF DEFENDANT TO PLEAD- 1. Duty of court-Entry of plea. As to pronouncing judgment after overruling of demurrer, see, ante, § 1011 and note. 1. Duty of court-Entry of plea.-If prisoner stands mute when called on to plead, it becomes court's duty to order plea of not guilty to be entered for him.People v. Bowman, 81 Cal. 566, 568, 22 Pac. 917. 2. Same-After overruling demurrer. If defendant demurs to indictment, and demurrer is overruled, and he then declines to plead, action of court in directing plea of not guilty to be entered instead of pronouncing judgment is an irregularity, but does not operate to legal prejudice of defendant.-People v. King, 28 Cal. 265, 266, 272; People v. Jocelyn, 29 Cal. 562, 563. 3. Plea by counsel-Amounting to nothing.-Plea by counsel for defendant, if it amounts to nothing, leaves defendant in same position as if he had stood mute.People v. Bowman, 81 Cal. 566, 568, 22 Pac. 917. 4. Same-Defendant can not complain.— Where counsel for defendant, in presence of defendant, states that plea is not guilty, defendant can not complain, because if he stood mute, and counsel had not stated plea, a plea of not guilty would have been entered same way.-People v. Emerson, 130 Cal. 562, 569, 62 Pac. 1069. 5. Same-Equivalent to standing mute. -Where, upon arraignment, defendant's attorney said, "We plead guilty," and defendant himself refused to answer, this was ⚫ equivalent to refusal to plead, and court may enter plea of not guilty on its minutes. -People v. McCoy, 71 Cal. 395, 396, 12 Pac. 272. 6. Same-Immaterial what counsel said. -Where defendant, upon his arraignment, stands mute, it is duty of court to have plea of not guilty entered for him, and it is immaterial that his attorney said to court that plea was not guilty.-People v. Samario, 84 Cal. 484, 486, 24. Pac. 283. 7. Standing mute-Same as plea of not guilty. Standing mute amounts to same thing as plea of not guilty, under this code. -People v. Coleman, 145 Cal. 609, 612, 79 Pac. 283. § 1025. PREVIOUS CONVICTION. When a defendant who is charged in the indictment or information with having suffered a previous conviction, pleads either guilty or not guilty of the offense for which he is indicted or informed against, he must be asked whether he has suffered such previous conviction. If he answers that he has, his answer must be entered by the clerk in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings. If he answers that he has not, his answer must be entered by the clerk in the minutes of the court, and the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty, or in case of a plea of guilty, by a jury impaneled for that purpose. The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction. In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 439; repealed April 9, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 19; present section enacted March 22, 1905, Stats. and Amdts. 1905, p. 773. PREVIOUS CONVICTION. 1. Admission of previous convictionBringing fact before jury. 2. Same-Error to read charge in information. 3. Same-When jury trial necessary. 4. Asking for plea. 5. Same-Not error. 6. Same-Not excess of jurisdiction. 7. Assault by convict. 8-11. Cross-examination of defendant-Ask- 12. Denial-Information of court. 15. Plea of guilty, generally. 16. Pleas, generally. 17. Re-enactment of section. 18. Voluntary confession of prior conviction. 19. Withdrawing admission-Must obtain leave. 20. Withdrawing denial-Discretion of 21. Same-Jury already impaneled. 1. Admission of previous convictionBringing fact before jury.-Defendant has it in his power to avoid bringing before jury fact of previous conviction, by confessing same at time of his arraignment. -People v. Coleman, 145 Cal. 609, 612, 79 Pac. 283. 2. Same-Error to read charge in information. Where defendant is charged with petty larceny and prior conviction of same offense, and pleads not guilty to principal offense, but confesses prior conviction, it is error to read portion of information charging previous conviction to jury, or to offer evidence thereof, or to instruct jury to find whether defendant had suffered previous conviction.-People v. Meyer, 73 Cal. 548, 549, 550, 15 Pac. 95. 4. Asking for plea.-Since repeal of section 1025, defendant can not be asked whether he had suffered previous conviction; still, he may answer voluntarily that part of indictment when read to him, and when he confesses such conviction, clerk must omit reading it to jury.-People v. Brooks, 65 Cal. 295, 298, 4 Pac. 7. 5. Same-Not error.-Not error for court to ask defendant, upon his arraignment, whether he had suffered prior convictions charged against him in information.-People v. McGregar, 88 Cal. 140, 142, 26 Pac. 97. 6. Same-Not excess in jurisdiction.-It is not an act in excess of its jurisdiction for court, after trial has begun, to call upon defendant to plead to charge of prior conviction, it being, at most, a harmless irregularity.-People v. King, 4 Cal. App. 213, 87 Pac. 400, 401. that 8. Cross-examination of defendant Asking as to prior conviction.-Defendant, if witness in his own behalf, may be asked question whether he has previously been convicted of felony. It is uncertain whether last part of this section, charge of previous conviction shall not be "alluded to on the trial," would SO far modify rules of evidence as to prohibit question as to whether defendant had suffered previous conviction of felony for purpose of attacking his credibility.-People v. Johnson, 57 Cal. 571, 572. 9. Construing this section, sections 1093 and 1323 of this code and section 2051 of the Code of Civil Procedure together, a defendant who has pleaded guilty to a prior conviction and who upon the trial takes 11. One charged with attempting to pass a fictitious check and with a prior conviction of forgery, who on arraignment admits the prior conviction, may, nevertheless, if he offers himself as a witness on the trial, be asked on cross-examination if he has ever been convicted of a felony, without violating provisions of above section relating to evidence of previous conviction, or of section 1323, post, limiting cross-examination of defendant. A defendant who offers himself as a witness is subject to the same rules for testing his credibility by impeachment or otherwise as other witnesses. People v. Oubridge, 38 Cal. App. 68, 175 Pac. 276. 12. Denial - Information of court. Where defendant pleads not guilty to offense charged, and guilty to prior conviction, it is intent of this section to keep all information from jury as to previous conviction, and plea of guilty thereof is only intended for information of court in determining punishment to be imposed in case of conviction.-People v. Thomas, 110 Cal. 41, 43, 42 Pac. 456. for 13. Former conviction - Question jury. Where a person accused of an offense under an indictment or information charging a former conviction, the punishment for the offense charged being greater where committed after a prior conviction, and the accused refuses to plead to the part of the indictment or information, he must be regarded as having pleaded "not guilty" to the charge of a former conviction, and the question as to the truthfulness of that charge is one for the jury.-People v. Kirk, 32 Cal. App. 517, 163 Pac. 696. 14. Necessity for plea. Former conviction is fact which constitutes or goes to make up aggravated offense, and being material fact in case, necessarily it must be pleaded, and if issue be joined in reference thereto, either by plea of not guilty or by standing mute, which amounts to same thing under this code, that material fact must be proven, as any other material fact, in trial of case.-People v. Coleman, 145 Cal. 609, 612, 79 Pac. 283. 15. Plea of guilty, generally.-Where defendant pleads guilty of "offense as charged in indictment" to an indictment charging petty larceny, and prior conviction of like offense, plea confesses offense charged which includes previous conviction.-People v. Delany, 49 Cal. 394, 396. 16. Pleas, generally.-Defendant charged with offense, and previous convictions of other offenses, may plead simply not guilty, thereby denying previous conviction, or plead not guilty of principal offense and confess previous convictions. - People V. Wheatley, 88 Cal. 114, 117, 26 Pac. 95. 17. Re-enactment of section makes question as to right of court to ask defendant as to his plea to prior conviction no longer of importance.-People v. King, 4 Cal. App. 213, 87 Pac. 400, 401. 18. Voluntary confession of prior conviction. Where defendant is charged with offense with prior conviction, since repeal of this section trial court must resort to section 988, ante, as to mode of arraignment, and plea of not guilty is denial of charge of prior conviction, but defendant may voluntarily confess previous conviction, and jury can not find thereon.-Ex parte Young Ah Gow, 73 Cal. 438, 443, 450, 15 Pac. 76 (overruling, in effect, People v. King, 64 Cal. 338, 340, 30 Pac. 1028). 19. Withdrawing an admission — Must obtain leave.— Where defendant, on arraignment, admitted fact of former conviction charged against him, he can not be heard, upon trial, to question correctness of such fact without first getting leave to withdraw admission.-People v. Appleton, 120 Cal. 250, 252, 52 Pac. 582. of 20. Withdrawing denial-Discretion court. Where defendant, upon his arraignment, pleaded not guilty to offense charged in indictment, and thereby denied charge of prior conviction, it is discretionary with court to allow him to withdraw his plea to prior conviction, and plead guilty thereto. -People v. Lewis, 64 Cal. 401, 1 Pac. 490. See, also, ante, § 1017, note pars. 19-23. 21. Same- Jury already impaneled. Where defendant pleaded not guilty to charge of prior conviction, and, after jury were impaneled and sworn and tried case. withdrew his plea, and substituted plea of guilty to prior convictions before information was read to jury, he is not prejudiced by any failure of jury to find upon prior conviction, which was not read to them, and upon which no issue was presented.People v. Chadwick, 143 Cal. 116, 121, 76 Pac. 884. 22. Same-Right to withdraw.-Defendant has right at any time to withdraw his plea of not guilty to charge of prior conviction, and to confess same; and having done so, jury has nothing to say or find in regard to it.-People v. Johnson, 88 Cal. 171, 174, 25 Pac. 1116. 23. Same- - Voluntary plea of guilty.— Defendant who has pleaded not guilty to information charging an offense and previous convictions of other offenses may, if permitted by court, in exercise of its discretion, withdraw his plea as to charge of previous convictions, and enter plea of guilty thereto; and if he voluntarily pleads guilty after having once pleaded not guilty, he can not object that plea of not guilty was not formally withdrawn.-People Wheatley, 88 Cal. 114, 118, 26 Pac. 95. V. CHAPTER V. TRANSMISSION OF CERTAIN INDICTMENTS FROM THE COUNTY COURT TO THE DISTRICT COURT OR MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. § 1028. Transmission of indictments from the § 1030. Indictments to be transmitted to the county to district courts. [Remunicipal criminal court of San pealed.] Francisco. [Repealed.] § 1029. Indictments against a judge of the superior court, certificate of facts to be transmitted to governor. § 1028. TRANSMISSION OF INDICTMENTS FROM THE COUNTY TO DISTRICT COURTS. [Repealed.] History: Enacted February 14, 1872, re-enactment of § 309 Criminal Practice Act 1851, Stats. 1851, p. 245, as amended April 3, 1863, Stats. 1863, p. 160; amended March 30, 1874, Code Amdts. 1873-4, p. 440; repealed March 12, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 6. § 1029. INDICTMENTS AGAINST A JUDGE OF THE SUPERIOR COURT, CERTIFICATE OF FACTS TO BE TRANSMITTED TO GOVERNOR. When an indictment is found or an information filed in a superior court against a judge thereof, a certificate of that fact must be transmitted by the clerk to the governor, who shall thereupon designate and direct a judge of the superior court of another county to preside at the trial of such indictment or information, and hear and determine all pleas and motions affecting the defendant thereunder before and after judgment. History: Enacted February 14, 1872, re-enactment of § 310 Criminal § 1030. INDICTMENTS TO BE TRANSMITTED TO THE MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. [Repealed.] History: Enacted February 14, 1872, founded on § 12 Act March 31, 1870, Stats. 1869-70, p. 529; repealed March 12, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 8. |