Rosenberg

The district attorney of Los Angeles County filed an information wherein defendants were charged with the crime of burglary (Pen. Code, § 459) in that they wilfully and unlawfully entered the residence of Michael Pioritto with the intent to therein commit theft. As to appellant Rosenberg, the information charged a prior conviction for passing counterfeit money in the state of New York.

Appellant entered a plea of not guilty and denied the prior conviction. Trial by jury was duly waived and the People’s case was submitted on the transcript of evidence adduced at the preliminary examination, each side reserving the right to offer additional evidence. After reading the aforesaid transcript and hearing the testimony of appellant in his own behalf, the court adjudged him guilty as charged in the information and found the offense to be of the second degree. Appellant’s motion for a new trial was denied and he was sentenced to state prison. As to the allegation of a prior conviction no finding was made. It was however stipulated in connection therewith that the court could consider the probation report which contained evidence of the prior felony conviction. Prom the judgment and order…