[Crim. No. 54. Department Two.-October 1, 1895.]

THE PEOPLE, RESPONDENT, v. W. L. EPPINGER,

APPELLANT.

CRIMINAL LAW-PLEADING-JEOPARDY-FORMER ACQUITTAL-MISTRIAL. Where a defendant accused of crime has been convicted of the same offense under an information which the appellate court held to be defective, and to justify a motion in arrest of judgment, the mistrial under the defective information cannot operate as an acquittal, or as a bar to further proceedings under a subsequent proper indictment by the grand jury for the same offense.

ID.-ARREST OF JUDGMENT, WHEN AN ACQUITTAL.-An arrest of judgment operates as an aquittal only when no evidence has been shown sufficient to charge the defendant with any offense; but it is not necessary that the evidence should be sufficient to convict him.

ID.-ARRAIGNMENT-MISSTATEMENT IN MINUTES OF COURT-IRREGULARITY NOT AFFECTING SUBSTANTIAL RIGHTS.-Where the minutes of the court show that the defendant was arraigned upon an information charging forgery, whereas, in fact, it was upon an indictment charging him with uttering a fictitious instrument, a copy of which indictment was given to him, whereby he was fully informed of the nature of the charge against him, and answered to it by his pleas, the ministerial irregularity in the minutes does not affect any substantial right of the defendant, and is not ground for reversal of a judgment of conviction. ID. POWER OF COURT TO CORRECT MINUTES-DISREGARD OF IRREGULARITY.-The trial court has the power to correct its minutes to make them import verity, and any mere irregularity in them must be disregarded.

ID. CONSTRUCTION OF ERRONEOUS VERDICT-CHARGE OF PRIOR CONVICTION OMISSION TO FIND.-Where a defendant accused of making, uttering, and passing a fictitious check, and with having suffered a prior conviction of petty larceny, pleaded the general issue of not guilty, and the jury failed to find specifically upon the issue of prior conviction, and returned a verdict finding the defendant guilty as charged, the verdict rendered is erroneous in not finding upon that special issue, but should be treated as a finding against the defendant upon the crime charged, and in favor of the defendant upon the question of prior conviction. ID.-UNCERTAINTY IN JUDGMENT-DISCRETION OF COURT-PRESUMPTION -REVERSAL UPON APPEAL.-Where the judgment upon the verdict was for the term of fourteen years, made absolute by subdivision 2 of section 667 of the Penal Code, upon a prior conviction, it must be presumed that the trial judge treated the general verdict as including a finding in favor of the truth of the charge of prior conviction, and did not exercise his discretion under section 476 of the Penal Code to impose any sentence to the extreme limit of the law, and in such case the judgment must be reversed, with directions to the trial judge to pronounce a judgment and sentence upon the defendant in the exercise of his discretion upon the facts and circumstances of the case, designating the offense as charged in the indictment, without reference to the charge of prior conviction.

APPEAL from a judgment of a Superior Court of the City and County of San Francisco, and from an order denying a new trial. WILLIAM T. WALLACE, Judge.

The facts are stated in the opinion of the court.

W. N. Cannon, for Appellant.

The minutes show that the defendant was improperly arraigned, and no issue was ever joined on the indictment, and the subsequent proceedings were void. (People v. Monaghan, 102 Cal. 229.) The verdict is contrary to law, in not passing upon the issue of prior conviction. (Pen. Code, sec. 1158; People v. Lewis, 64 Cal. 401; People v. Brooks, 3 West Coast Rep. 53.) The crime of making and passing a fictitious instrument is not forgery. (People v. Elliott, 90 Cal. 586; People v. Eppinger, 105 Cal. 36.) The judgment was erroneous in sentencing the defendant for forgery. (People v. Johnson, 71 Cal. 384.) The pleas of prior acquittal and once in jeopardy should have been sustained. (Pen. Code, secs. 1022, 1023, 1188.)

W. F. Fitzgerald, Attorney General, and C. N. Post, Deputy Attorney General, for Respondent.

The defects in the minutes concerning the arraignment is an inadvertence, and clearly a clerical error, which must be disregarded by this court. (Pen. Code, sec. 1258; People v. Rozelle, 78 Cal. 84; People v. Ah Sing, 95 Cal. 654.) The crime charged was a species of forgery which might be termed such. (People v. Elliott, 90 Cal. 588.) An erroneous name given to a crime charged with sufficient clearness, as defined by the statute, does not vitiate. (People v. Elliott, supra; People v. Phipps, 39 Cal. 326; People v. Cuddihi, 54 Cal. 53; People v. Dalton, 58 Cal. 228; People v. Sheldon, 68 Cal. 436.) The verdict should be considered as disregarding the prior conviction. The pleas of a prior acquittal and once in jeopardy were without merit. The judge had the right to recommit the defendant to await

the action of the grand jury when the motion in arrest of judgment was sustained. (Pen. Code, sec. 1188.)

HENSHAW, J.-Defendant was convicted under an indictment charging him with making, uttering, and passing a fictitious check (Pen. Code, sec. 476), and with having suffered a prior conviction for petty larceny. He pleaded jeopardy, former acquittal, and not guilty. Under instructions from the court to that effect the verdicts of the jury upon the two first pleas were for the people. The instructions and the verdicts were proper.

The circumstances are that defendant had been convicted of the same offense under an information which this court held to be defective. (People v. Eppinger, 105 Cal. 36.) Upon issuance of the remittitur, the trial court, adjudging that evidence had been produced sufficient to charge him with an offense, recommitted defendant to the custody of the sheriff to await the action of the grand jury, which in due time returned this indictment. The defendant, upon the first trial, at the time of his arraignment for sentence, moved an arrest of judgment upon the ground of defects in the information, and now contends that the ruling of this court sustaining him in his motion operates as an acquittal under section 1188 of the Penal Code.

But the arrest of judgment operates as an acquittal only when no evidence has been shown sufficient to charge the defendant with any offense. It is not necessary that the evidence should be sufficient to convict him. If, for example, the people had failed to lay or prove the venue, the evidence would not be sufficient to convict, but it still might establish to a certainty that somewhere the defendant had committed the particular crime charged. And it was never intended to be, nor is it the law, that under such a state of facts the mistrial should operate as an acquittal or as a bar to further proceedings.

The minutes of the court show that defendant was arraigned upon an information charging him with for

gery, whereas, in fact, it was upon an indictment charging him with uttering a fictitious instrument. But these ministerial irregularities do not affect any of the substantial rights of the defendant, who was in fact arraigned upon an indictment, a copy of which was given to him, and who was thus fully informed of the nature of the charge against him, and answered to it by his pleas. The trial court has the power to correct its minutes to make them import verity, and the irregularity must be disregarded. (Pen. Code, sec. 1258; People v. Ah Sing, 95 Cal. 654.)

A more serious objection is found in the form of the verdict returned by the jury upon the general issue. The defendant, having pleaded not guilty, put the prosecution to proof upon all material averments, of which that of prior conviction was one. The jury did not find specifically upon this issue as they were required to do by section 1158 of the Penal Code, but returned a verdict finding the defendant guilty as charged.

Had the prior conviction not been charged, or had it been found that the charge was not true, the court in pronouncing sentence could have exercised its discretion and imprisoned the defendant for any period, from one to fourteen years. (Pen. Code, sec. 476.) Had the prior conviction been found as true, the statute then deprives the judge of this discretionary power, and requires the sentence to be an absolute one of fourteen years. (Pen. Code, sec. 667, subd. 2.)

In this case the sentence imposed was fourteen years. It is impossible to say whether this term was fixed by the judge in the exercise of his discretion, or without the exercise of discretion in accordance with the mandate of the statute upon prior conviction found. But it is not necessary to determine this. It was unquestionably error for the jury to have failed to find upon the issue. The error being shown, the injury will be presumed, unless the contrary is clearly made to appear. (People v. Ybarra, 17 Cal. 166; People v. Williams, 18 Cal. 187; People v. Stanley, 47 Cal. 113;

17 Am. Rep. 401.) In other words, it must be presumed that the trial judge treated the general verdict as including a finding in favor of the truth of the charge of prior conviction, and thus sentenced under section 667 of the Penal Code. Had the sentence been for any less period than fourteen years, the difficulty would have been obviated, for it would then certainly have appeared that the court treated the verdict as favorable to the defendant upon the charge of prior conviction. Not having done so affords additional ground for the belief that it felt compelled to sentence under section 667. But, in so doing, the judge incorporated into the verdict a finding of fact which the jury did not make, and sentenced the defendant under an issue upon which the jury did not pass.

The verdict rendered should be treated as a finding against the defendant upon the crime charged, and in favor of the defendant upon the question of prior conviction. The judgment must therefore be reversed, with directions to the trial judge 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 at the same time the judgment should designate the offense as the making, passing, and publishing a fictitious check with intent to defraud. (People v. Johnson, 71 Cal. 384.)

The foregoing are the only contentions which, in our view, merit consideration.

MCFARLAND, J., and TEMPLE, J., concurred.

Hearing in Bank denied.