People v. Moronati

Defendant was convicted under a charge of having narcotic drugs in his possession. He appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

The minutes of one of the departments of the superior court from which the appeal is prosecuted show that appellant, upon his arraignment, “regularly enters his plea of ‘Not Guilty’ as charged in the information. Defendant denies prior conviction, but pleads former jeopardy and the trial of the action is thereupon set for” a named date. The denial of prior conviction resulted, of course, from the fact that a prior conviction was charged in the information. A trial of appellant in the department in which he was arraigned occurred later, the jury disagreed, and the cause was reset for trial in the same department. The minutes of the department under the date upon which the cause came on for retrial show: “Cause is transferred to Department 7 [a different department of the court] for immediate trial.” Appellant was tried and convicted in the department to which his cause was thus transferred. The minutes of that

[1] It is insisted by respondent that there was no plea of once in jeopardy in the case, and first, that there was no such plea before the jury at the second trial. It is said that there is nothing in the minute entry made at the commencement of that trial, “Information read and plea of the defendant stated,” to indicate that appellant interposed any other plea than that of not guilty. With this contention we cannot agree. The plea entered by appellant in the department of the court in which he was arraigned remained standing throughout the progress of the cause, notwithstanding the transfer to another department and the conduct of a second trial there. “When defendant has been arraigned and pleaded not guilty, and a judgment of conviction is reversed and the case remanded, a rearraignment is unnecessary, as the plea of not guilty interposed on the first trial remains in full force until the indictment is finally disposed of” (16 C. J. 388). It is plain that the minute entry made, in the department in which appellant was tried the second time, to the effect that his plea was stated, can only mean that the plea which he entered upon his arraignment, the only plea he ever entered, was stated to the jury, after the reading of the information to that body, for the purpose of acquainting its members with the issues to be tried. As the plea included the special plea of once in jeopardy, granting for the present that it was sufficient, the issue arising from that special plea was placed before the jury for determination.

[2] It is a part of the contention of respondent that the attempted plea of once in jeopardy, as stated in the minutes of the arraigning department of the trial court, was but a

[3] It is insisted that the plea of once in jeopardy was insufficient. It is provided in subdivision 4 of section 1017 of the Penal Code that such a plea must be “in substantially the following form: . . . ‘The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place and court).’ ” It is plain that appellant’s plea, as entered in the minutes, that he “pleads former jeopardy,” was not in compliance with this provision. The very terms of the section show the insufficiency of the plea and a decision of the supreme court emphasizes the fact of its insufficiency (People v. O’Leary, 77 Cal. 30 [ 18 Pac. 856 ]). The plea as entered failed to show when, or where, or by the action of what court appellant was put in “former jeopardy. ” No sufficient plea of once in jeopardy having been interposed, there was no issue in that regard upon which the court could have instructed the jury or upon which the jury could have found.

[4] The statute under which appellant was convicted provides that no person shall have in his possession any of the narcotics named in it “ excepting . upon the written order or prescription of a physician, dentist or veterinary surgeon” (Stats. 1919, p. 1276, sec. 8; Deering Consol. Supp. Gen. Laws 1917-21, Act 2724), and it also provides for other similar exceptions. The trial court instructed the jury that it was not incumbent upon the People to prove that

[6] Two police officers testified in rebuttal that appellant’s general reputation for truth, honesty, and integrity in the community in which he lived was bad, appellant having taken the stand in his own behalf. It is insisted that no sufficient foundation was laid for the testimony. Appellant says that “it appeared that their knowledge of him was had only through their activities in the police department, and that they could not know his general reputation. ’ ’ The point plainly is without merit. The officers testified that they knew the general reputation of appellant in the respects mentioned, and the fact that they were police officers did not minimize nor detract from the statement, much less overturn it.

[7] It is contended that there was misconduct in various remarks of the district attornejr made during his address to the jury. Some of his statements were in bad taste, no doubt, but we think he said nothing which was misconduct, as that term is to be understood in considering whether a judgment shall be reversed because of it.

Judgment and order affirmed.

Pinlayson, P. J., and Craig, J., concurred.