Wheatley

The defendant was charged with the crime of burglary, and with having suffered prior convictions of burglary and petit larceny. The information was filed in the superior court of the city and county of San Francisco on September 19, 1889, and on the same day the presiding judge of the court assigned.the case for trial to Hon. W. T. Wallace, judge of department No. 6. The defendant was arraigned in department No. 6 on September 27th, and “ pleaded not guilty of the crime charged in the information.” The record then shows the following:-—

Subsequently, as the record states, the cause came on regularly for trial in department No. 12, the defendant and his counsel being present in court, and at the conclusion of the trial a verdict was returned by the jury, finding the defendant guilty of burglary in the second degree. He moved for a new trial, and his motion was denied. Judgment was then entered that he be punished by imprisonment in the state prison for the term of eight years. From this judgment, and the order denying him. a new trial, he appeals.

1. The first point made for a reversal of the judgment is, that the case was not properly tried in department No. 12. It is claimed…