Tahtinen

This is an appeal from an order denying a motion for a new trial and a judgment of conviction of possessing heroin.

In an information filed in Los Angeles County defendant (appellant here) was charged in Count I with possessing heroin for sale, in Count II with possessing heroin in violation of the provisions of section 11500, Health and Safety Code. Three prior convictions were charged (the first of which was a federal case and involved the unlawful importation and receipt of opium in 1944, the second was for the violation of section 11500, Health and Safety Code, in Los Angeles County in 1949, of which he was convicted, and the third for a similar charge as above set forth with reference to the second prior).

The defendant pleaded not guilty and denied the prior convictions. Later at the time of trial the defendant admitted the first and third charged prior convictions. By stipulation the court was to determine the truth or falsity of the second charged prior conviction. A jury was selected and the trial commenced on March 21, 1962. The next day the jury was waived and after the taking of further testimony before the judge it was stipulated that the ease could be determined by…