Wallach

The indictment as presented by the grand jury, accused the defendant11 of the crime of burglary, a felony (with a prior conviction of an offense punishable by imprisonment in the state prison of California, committed in the state of New' York, to-wit: burglary) ’ ’; and then alleged in direct terms the conviction of defendant in the supreme court of the' state of New York of the crime of burglary, and his imprisonment therefor; and that thereafter in the county of Los Angeles, California, the defendant did wilfully, etc. (here stating certain acts constituting the crime of burglary), the defendant being then and there armed with a deadly weapon, to wit, a revolver.

At the trial of this action and before the jury was impaneled or sworn, on motion of the district attorney, and after counsel for defendant had stipulated that the motion might be granted, the court struck out from the indictment that portion thereof which alleged the prior conviction of the defendant of the crime of burglary in the state of New York. Appellant now contends that the indictment as so changed was no longer an indictment of the grand jury, and that there was no instrument before the court charging…