People v. Smith

The defendant was charged with the crime of petit larceny and with a prior conviction of burglary. He entered his plea admitting the charge as to the prior conviction, but to the charge of petit larceny he pleaded not guilty, and he also pleaded a former acquittal of the petit larceny charged in the information. He was convicted, sentenced to two years and ten months in San Quentin, and prosecutes this appeal from the judgment and order denying his motion for a new trial. In support of his plea of former acquittal he offered in evidence a complaint in the justice court, charging him with the same petit larceny charged in the information, a warrant of arrest issued upon the said complaint, and a judgment of dismissal of the charge against him; said judgment having been made on motion of the district attorney. The judgment of dismissal recites: “E. H. Hoar moves the court to dismiss the complaint on file herein and to file a new complaint charging a felony. F. W. Henderson, attorney for defendant, objects to the dismissal of the complaint on file and to the filing of a new complaint. Objections overruled. Complaint herein dismissed and defendant discharged.”

The court sustained the…