Wallace

The defendant was tried, in the county of San Bernardino, on an information by the district attorney, for an assault with a deadly weapon with intent to murder; but was convicted of only an assault with a deadly weapon. He appeals from the judgment and from an order denying his motion for a new trial.

1. It is contended that the plea of the defendant, as entered in the minutes of the court, was not in form or substance such as required by section 1017 of the Penal Code, viz:

The minutes of the court show that the defendant was regularly arraigned on March 6, 1893, and upon being asked whether he was guilty or not guilty, his attorney asked further time to plead, and was given until March 8th. On March 8th, the following entry was made in the minutes:

I think the plea entered in the minutes is “ substanti ally,” in the form prescribed by section 1017 of the Penal Code.

It is claimed that the plea is improperly limited to the charge, “ as stated in the information,” as if the defendant was required to plead to a charge as stated elsewhere than in the information.

2. The jury was not drawn, but was summoned by the sheriff by authority of a special venire facias regularly issued…