People v. Johnson

The defendant was charged in the information filed against him with the crime of burglary, and with a prior conviction of grand larceny. He was tried, and found guilty of burglary in the second degree. Judgment was entered that he be imprisoned in the state prison for the term of ten years. From this judgment he has appealed, but the record brought up contains no bill of exceptions and none of the instructions given, to the jury.

In support of the appeal, it is argued that the defendant, as shown by the record, was arraigned only for the crime of burglary, and pleaded simply not guilty; that this plea put in issue every allegation of the information, and upon it he was tried, and found guilty simply of burglary in the second degree; that as there was no verdict as to the prior conviction, it could not be taken into consideration in pronouncing judgment, and hence, as the maximum term of imprisonment authorized by the statute in such a case was five years (Pen. Code, sec. 461), the judgment was illegal, and should be reversed.

*174 It is true that the record as originally filed in this court showed no admission by the defendant, or finding, as to the alleged prior conviction, but…