
    [Crim. No. 262.
    Department Two.
    September 25, 1897.]
    THE PEOPLE, Respondent, v. CHARLES McNEILL, Appellant.
    Ckiminal Law—Assault with Intent to Kill—Pbiob Conviction—Denial and Subsequent Confession—'Verdict—Sentence—Recital in Judgment —Appeal.—Wliei'e a defendant charged with an assault with intent to kill, and also with having suffered a prior conviction of another felony, when arraigned, pleaded not guilty of the offense charged, and denied the prior conviction, and the verdict passed only on the plea of not guilty, but the sentence was too great, unless based on the prior conviction, and the judgment recited that defendant subsequently, on a specified day, confessed the prior conviction, the truth of which recital was not controverted, the verity of the recital must be accepted; and where it appears that the case was conducted on the theory that the prior conviction had been confessed, and no reference was made to the prior conviction, either in the reading of the information or in the charge of the court, there is no defect in the judgment-roll of which defendant can take advantage upon appeal, and no erroi appears upon its face.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. William T. Wallace, Judge.
    The facts are stated in the opinion of the court.
    William Hoff Cook, for Appellant.
    W. F. Fitzgerald, Attorney General, and Henry E. Carter, Deputy Attorney General, for Eespondent.
   McFAELAND, J.

This is an appeal by defendant upon the judgment-roll alone. He was charged in the indictment with the crime of an assault with intent to kill. He was also charged with having suffered a prior conviction of another felony. Where defendant is charged with a prior conviction, embarrassment in the proceeding usually follows, where, as is usually the case, little care is exercised by the prosecuting officers to closely follow the statute.

When defendant was arraigned, the plea which he there entered, as appears by the record, was in the following form: “Not guilty to the information, and denies prior conviction.” The verdict was as follows: “We, the jury, find the defendant guilty of an assault with a deadly weapon, and so say we all.” The judgment was that the appellant be punished by imprisonment in the state prison for the term of five years. As the maximum punishment for the crime of an assault with a deadly weapon is two years’ imprisonment (Pen. Code, sec. 245), of course, the judgment was excessive, unless the court in pronouncing the judgment had the right to consider the previous conviction under section 666 of the Penal Code. Appellant contends that this judgment was erroneous because the jury did not find the appellant guilty of previous conviction, as provided by section 1158 of the Penal Code; but the judgment recites that the defendant was informed of the information against him, and of his plea as hereinbefore stated, and also that the defendant “subsequently, on the eighteenth day of September, 1896, confesses, the prior conviction”; and there is nothing in the record which contradicts or is not consistent witb tbis statement in tbe judgment, and section 1200 of tbe Penal Code provides that, wben tbe defendant appears for judgment, be must be informed of the nature of tbe charge, of bis plea, of tbe verdict, etc. Tbe provisions of the Penal Code witb respect to tbe procedure, where a defendant is also charged witb a previous conviction, are very loose, and were evidently drafted by one unfamiliar witb criminal practice, and witb tbe technical language usually employed to designate pleadings, etc., in such procedure. Section 1158 provides that wben a previous conviction is charged in an indictment or information tbe jury must find a special verdict as to such charge, “unless tbe answer of the defendant admits the charge.” This, of course, leaves tbe matter very indefinite, as there is no such word as “answer” used in any other part of the criminal procedure to designate either a plea or any other matter. Section 1093 provides that, where a previous conviction is charged, and tbe defendant “has confessed” tbe same, tbe clerk, in reading tbe information, must omit therefrom all that relates to such previous conviction. But there is no provision as to bow tbe confession shall be made to appear, or in what way tbe “answer” mentioned in section 1158 shall be shown. No doubt it would be better for tbe record to show that tbe defendant formally made a confession in tbe form of a plea entered upon tbe minutes contemporaneously witb tbe making of tbe confession; but it cannot be said that the code requires such procedure, and as tbe judgment states tbe fact that be did confess on a certain day, and as that fact is in no way contradicted by tbe record, and as there is no attempt to show that tbe statement is not true, its verity must be accepted. Indeed, tbe proceedings in tbe case, so far as they appear, show that tbe case was conducted upon tbe theory that there had been a confession of a prior conviction; for it appears that at tbe commencement of tbe trial only that part of tbe information which charged tbe defendant witb assault witb intent to commit murder was read to tbe jury, and in tbe charge of tbe court, which appears in tbe record, and which is quite lengthy, there is no reference whatever to tbe charge of a prior conviction, all of which was evidently in accordance with tbe right of tbe appellant under section 1093, to keep from the jury all knowledge of tbe charge of tbe prior conviction. There is, therefore, no defect in the ¡judgment-roll of which the appellant can take advantage, and no error appears upon its face.

The judgment appealed from is affirmed.

Henshaw, J., and Temple, J., concurred.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank.  