Eppinger

On April 4,1895, the defendant was convicted under an indictment for passing and publishing a fictitious check, with intent to defraud, and which also, charged a prior conviction for petit larceny. A verdict-of guilty was returned by the jury as to making and passing the fictitious check, but the verdict was silent as to the prior conviction for petit larceny. An appeal-was taken from that judgment to this court, and the court below was directed to treat the verdict as a finding against the defendant upon the crime charged and in favor of the defendant upon the question of prior conviction, and the judgment was reversed, with directions to the trial court to pronounce a. judgment and sentence upon defendant, in the exercise of his discretion, upon the facts and circumstances of the case, as provided for by section 476 of the Penal Code; and further directing the court that the judgment should designate the offense as the making, passing, and publishing a fictitious check with intent to defraud. (People v. Eppinger, 109 Cal. 294 .)

*352 On November 8, 1895, after the remittitur had gone down from this court, the defendant was called for judgment, and was asked if he had any legal…