People v. Wagner

The defendant was convicted of the crime of burglary in the second degree upon an information charging as follows; “The said George Wagner on or about the 1st day of April, A. D. 1925, in the said County of Sacramento, in the said State of California, and before the filing of this information, did then and there wilfully, unlawfully, feloniously and burglariously enter the building used as a restaurant by one P. Koris at 1418 J Street, in the City of Sacramento, in said County of Sacramento, with the felonious intent then and there to commit the crime of larceny, contrary to the form, force and effect of the Statute in such case made and provided, and against the peace and dignity of the People of the State of California.” From the testimony of the defendant during the course of the trial it developed that the defendant had suffered two previous convictions, and the court in pronouncing sen

[1] Upon the question as to the sufficiency of the evidence, the only matter called to the attention of the court is the alleged absence of a scar on the defendant’s head. The circumstances attending the offense for which the defendant was convicted are set forth as follows: About 10 o’clock at night on April 1, 1925, the defendant and one other person were discovered attempting to break into a restaurant on J Street in the city of Sacramento. An alarm being given, officers arrived and observed a'short man standing inside the restaurant near the cash register, but before he could be arrested this man emerged from the front door of the restaurant, crossed the street, and was followed by an officer named Kaminsky. The officer overtook the short man just as he started to climb a fence in an alley between I and J Streets in said city, and in the scuffle that ensued the officer struck the defendant over the left ear with his revolver. This short man then grappled with Officer Kaminsky, succeeded in taking away the officer’s revolver and making his escape. A blood-stained cap was found thereafter near the Western Pacific track. On the back porch of the restaurant was also found a coat with the name of G-. Wagner on a label in one of the pockets. The defendant was identified by Kaminsky as the man with whom he had had the struggle in the alley. Upon the trial, the defendant exhibited his head to the jury to show that he had no scar. To rebut this evidence, the prosecution introduced the testimony of Dr. Binkley to the effect that there had been a scar on defendant’s head about the middle of May succeeding the date of the offense. As opposed to the testimony of Dr. Binkley, appellant cites Ogstrom Lectures, Medical Jurisprudence, 425, Taylor on Medical Jurisprudence, page 333, and Herold on Manual of Legal Medicine, page 305, to the effect, “that if, on examining a part, where at some previous time a stab, cut or burn involving

[2] Section 644 of "the Penal Code provides: “Every person convicted in this state of any felony who shall previously have been twice convicted, whether in this state or elsewhere, of the crime of robbery, burglary, rape with force and violence, arson or any of them, shall be adjudged to be an habitual criminal and shall be punished by imprisonment in the state penitentiary for not less than ten years.” The information in this case charges no prior convictions. Section 969 of the Penal Code sets forth the procedure which must be followed in charging prior convictions. Section 1025 of the Penal Code sets forth the procedure that shall be had when the defendant is arraigned upon an information charging a prior conviction, and sections 1093 of the same code and procedure to be followed upon such an indictment or information when the trial of the defendant is begun.

In People v. Coleman, 145 Cal. 609 [ 79 Pac. 283 ], it is held that previous conviction is a question of fact, which must be both pleaded and proven, or, which is the same thing, pleaded in the information and admitted by the defendant. To the same effect is the case of People v. King, 64 Cal. 338 [ 30 Pac. 1028 ], People v. Chadwick, 4 Cal. App. 63 [ 87 Pac. 384 , 389], and 16 C. J. 1342. A number of additional authorities might be cited but the necessity of such pleading is unquestioned in this state and the foregoing authorities set forth the rule prevailing in California. Section 644 of the Penal Code was added in 1923 (Stats. 1923, p. 237) and does not appear to have received interpretation by any court of appeal in this state. We think the same rule applies where it is sought to adjudge a defendant an habitual criminal as where additional punishment is sought to be inflicted by charging a prior conviction. In the case of People v. Rosen, 208 N. Y. 169 [ 101 N. E. 855 ], the court of appeals of the state of New York, in a case which was

Needham, J., pro tem, and Finch, P. J., concurred.