THE PEOPLE, Respondent, v. OLIVER H. LEWIS, Appellant, 64 Cal. 401

Thornton, J. In this action the defendant was indicted for grand larceny, and in the indictment was charged with a previous conviction of a like offense. The defendant was arraigned and pleaded "not guilty to the offense charged in the indictment.” The continuance was properly refused. It did not seem that the attendance of the alleged absent witness could have been procured in a reasonable time. (People v. Cleveland, 49 Cal. 580; Same v. Ah Yute, 53 Cal. 613.) On the trial, the defendant offered to plead guilty to the charge of previous conviction. The court denied the offer. It is urged that this was error. We cannot accord with this view. The nine hundred and sixty-ninth

section of the Penal Code, specially relating to the arraignment when a previous conviction was charged, had been repealed before the arraignment was had. The arraignment was had in May, 1882, while the

section was repealed in 1880. (See Desty’s Ed. of Pen. Code of 1881, § 969.) Under these circumstances the arraignment had to be made under the statute as it was left unrepealed. (Pen. Code, § 1017.) Under this

section the defendant was properly arraigned, and on such arraignment he pleaded not guilty as charged. This we regard as a compliance with the statute. Having then regularly pleaded, the court was not bound afterwards on the trial to accept the plea of guilty of the previous conviction. It may be in its discretion to do so or not— not a discretion, however, to be arbitrarily exercised, but one in accordance with the principles of law and its analogies. If the court abused its discretion in so ruling, a reversal would follow, but we cannot see that it went beyond what the law permitted.

Viewing the question as one addressed to the discretion of the court is the most favorable that can be taken for the defendant, and in that yiew there is no error. We will add here that the answer of defendant in

section 1158 of the Penal Code is the plea which he tenders on arraignment. (People v. King, 64 Cal. 338.) It is stated that the court, in charging the jury, read a certain

section of the Penal Code, the number of which is not given, and therefore it is in error. The bill of exceptions states what occurred in the following words: “ The Court—I will instruct you, gentlemen, in the language of the statute. [Reads §- of Pen. Code.] Larceny in other cases is petit larceny.” The words underscored are the words used in

section 488 of the Penal Code. It does not appear that more than one

section was read, and the language of one

section is given in the chayge. Does this disclose error? We cannot say that it does. It may be that the court read other sections, but this does not appear. Error must be deducible from the record. If it does not appear it does not exist; and it must be recollected that all intendments are in favor of the correctness of the action of the court below. It may be argued that the language used, “ that larceny in other cases is petit larceny,” shows that a

section was read defining cases which were not petit larceny. Granting this to be so, it would also show that the other sections in relation to grand larceny were read, and this would identify them sufficiently to bring them within the rule of People v. Mortier, 58 Cal. 262.) Sections of the Code may be identified otherwise than by the numbers. If it was stated that the sections in relation to grand larceny were read, this would identify them sufficiently, and according to the rule in People v. Mortier, svpra, there would be no error.

The defendant was charged in the indictment with stealing on the 29th of December, 1881, a cow, the property of Robert Parran, William A. Boose, and Edward Clysdale. At the time the indictment was found (3d of May, 1882) Boose had deceased. It is said the indictment should have alleged the ownership, and the proof should have followed the allegation. This is assigned as an error. The indictment alleged the ownership as of the date when the offense was committed. The ownership was properly alleged of the date mentioned, and the evidence established the allegation.

The defense of once in jeopardy is untenable under the settled law of this State. (People v. Stanley, 47 Cal. 113.) The direction as to the form of the verdict was correct, and the evidence was sufficient to justify the verdict. Ho error appearing in the record, the judgment and order are affirmed. Morrison, C. J., Myrick, J., ar d Sharpstein, J., concurred.