Thomas

The defendant was convicted of burglary in the first degree and sentenced to imprisonment at San Quentin for twenty-five years, and this appeal is from an order denying his motion for a new trial. The information charged a burglary committed at the county of Alameda in October, 1894, and also charged a prior conviction of the crime of burglary in the superior court of said county on October 15, 1890.

Upon arraignment the defendant confessed the prior conviction, and, as to the offense charged in the information, pleaded not guilty. Upon the trial a witness called on the part of the prosecution was permitted, over the objection of defendant, to testify to the following conversation which he had with the defendant after his arrest and while the witness had him in custody, namely: “I says to the defendant, Ain’t it a fact that you served two years in San Quentin, from Alameda county, for burglary? He said: No, I served two years in Folsom for burglary.” The ruling of the court was duly excepted to, and is the only error relied upon.

Section 1158 of the Penal Code provides that the jury, if they find a verdict of guilty of the offense with which the defendant is charged, " must…