49 Cal. 394, 10,101, People v. Delany

Docket Nº:10,101
Citation:49 Cal. 394
Opinion Judge:McKINSTRY, Judge
Party Name:THE PEOPLE v. ELLEN DELANY
Attorney:C. B. Darwin, for the Appellant, Attorney-General Love, for the People.
Judge Panel:JUDGES: McKinstry, J. Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.
Case Date:October 01, 1874
Court:Supreme Court of California
 
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Page 394

49 Cal. 394

THE PEOPLE

v.

ELLEN DELANY

No. 10,101

Supreme Court of California

October, 1874

Appeal from the Municipal Criminal Court of the City and County of San Francisco.

The indictment charged the defendant with petit larceny committed on the 20th day of December, 1873, and charged also four previous convictions for petit larceny in the Police Judge's Court of the City and County of San Francisco. On the 4th day of March, 1874, the defendant plead guilty. On the 6th day of March, when the defendant was called up for sentence, she asked the Court to be sentenced for petit larceny. The Court denied the request, and adjudged her guilty of a felony, and sentenced her to the State prison for two years. She appealed.

COUNSEL

C. B. Darwin, for the Appellant, argued that the value of a plea of guilty was settled by section 1, 017 of the Penal Code, and was the same as saying, guilty of the offense charged, and that the offense charged was that stated in the indictment. That the offense charged was one which had not before been tried, and was not the allegation of a former conviction. That the allegation of a former conviction might or might not be in the indictment, and that it was not a part of the offense, but was a circumstance which increased the punishment if it was proved.

Attorney-General Love, for the People.

JUDGES: McKinstry, J. Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.

OPINION

McKINSTRY, Judge

Page 395

The question herein considered arose in the Court below before the adoption of the last amendments of the Penal Code.

The indictment charges the defendant with stealing goods of the value of twenty dollars, after having been convicted of petit larcenies. The particular circumstances of the offense are stated, and consist of the prior convictions and of the facts constituting the last larceny. (Penal Code, 952.) These circumstances subject the defendant to imprisonment in the State prison, and constitute a felony. (Penal C. 17, 667-3.)

The defendant pleaded " guilty of the offense charged in the indictment." (Penal C., 1,017-1.) Appellant contends that " the offense charged consists of a statement of facts which constitute an offense, which it is not pretended has been before tried, and is stated only that it may be tried." Assuming this definition to be correct...

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