In Re Brain

This matter comes before us upon an application for a writ of habeas corpus. Petitioner contends that his confinement in the state prison at San Quentin, California, is illegal because the judgment of conviction of the crime of burglary, by reason of which he is being restrained of Ms liberty, was based upon a plea of guilty and that no such plea was ever entered by said petitioner.

From the transcript of the proceedings in the trial court, it clearly appears that the petitioner did not plead guilty, but that his attorney stated to the court: “I believe the information has been read; if not, we will waive the reading of the information and enter a plea of gmlty and make application for probation.”

We think this was not a proper plea in the face of the statute, which specifically provides that a plea of guilty can be put in by the defendant himself only in open court. Sec. 1018, Pen. Code.) In the ease of People v. McCrory, 41 Cal. 461 , it was said: “A plea confessing himself to be guilty of crime should not be entered except with the express consent of the defendant, given by him personally, in direct terms, in open court. NotMng should be left to implication, and his…