McNeill

This is an appeal by defendant upon the judgment-roll alone. He was charged in the indictment with the crime of an assault with intent to kill. He was also charged with having suffered a prior conviction of another felony. Where defendant is charged with a prior conviction, embarrassment in the proceeding usually follows, where, as is usually the case, little care is exercised by the prosecuting officers to closely follow the statute.

When defendant was arraigned, the plea which he there entered, as appears by the record, was in the following form: “Not guilty to the information, and denies prior conviction.” The verdict was as follows: “We, the jury, find the defendant guilty of an assault with a deadly weapon, and so say we all.” The judgment was that the appellant be punished by imprisonment in the state prison for the term of five years. As the maximum punishment for the crime of an assault with a deadly weapon is two years’ imprisonment (Pen. Code, sec. 245), of course, the judgment was excessive, unless the court in pronouncing the judgment had the right to consider the previous conviction under section 666 of the Penal Code. Appellant contends that this judgment was…