Brain

By information filed by the district attorney defendant was charged with the crime of robbery. He was convicted and appeals from the judgment and from an order of the trial court denying his motion for a new trial.

Long before the filing of the information which eventuated in the conviction in the present case, appellant had been charged, for a house-breaking immediately preceding the robbery, with the crime of burglary. To this earlier charge he had pleaded guilty and had made an application for probation. The application was denied, appellant was sentenced to a term in the state prison and was incarcerated pursuant to the sentence. In the present case he pleaded not guilty, and he entered special pleas of former conviction, former acquittal and once in jeopardy. In support of these special pleas he proved, at his trial under the charge of robbery, the facts above set forth concerning the earlier charge. This was the only defense made. The trial judge instructed the jury that the special pleas were not sustained by the evidence.

Appellant contends that the special pleas were good, that, therefore, the instruction given by the judge was erroneous, and, moreover, that the…