The information in this cause charged that the defendant had been convicted of grand theft in 1944, in Los Angeles County, and that he had served a term in prison therefor; and it further charged that in 1954, the defendant was convicted of violating the Dangerous Weapon’s Control Law (an ex-convict with a gun), and that he had served a term in prison for that offense. The prosecution introduced into evidence proper documents and evidence, including certified copies of the commitment papers, fingerprint records and pictures of the defendant, which show without question the dates when the defendant was received at the prison, the length of his terms and the dates when he was discharged from parole. It was stipulated that the defendant was the person named and referred to in the prior commitment papers.
The defendant stated on direct examination, in answer to questions put to him by his own attorney, that he had previously been convicted of a felony. On cross-examination the defendant admitted that he had previously been convicted of the offenses named as to the priors alleged in the information, and that he had served a term in prison for each of such offenses.
*784At the conclusion of the testimony the court found the defendant guilty as charged in the information, and then asked the defendant, “Do you wish to file an application for probation?” The defendant’s attorney stated, “The defendant is not eligible for probation, your honor.” The judge indicated that he was going to have such an application filed in any event, whether the defendant was eligible or not, and the defendant’s attorney then said, “I am wondering if we are not asking the defendant to spend a lot of dead time here ? ’ ’
At the time the matter came on for further proceedings, within a few days, the attorney for the defendant pointed out to the judge that the defendant was ineligible for probation, and thereupon sentence was imposed. The judge said, “I will make no determination as to his priors . . . .” As a consequence the defendant has now gone back to the state prison, not as a third offender which he is in fact, but as a first offender.
The original file also reflects that the defendant was charged in another information filed about a week before the present case with possessing certain narcotics on June 8, 1958, and that ease was dismissed “in the interests of justice” after the conviction in the present case now on appeal.
Penal Code, section 1158, provides in part as follows:
“Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous convictions, find whether or not he has suffered such previous conviction. ... If more than one previous conviction is charged a separate finding must be made as to each.” (Emphasis added.)
Disregard of the statutes, in my opinion, deprives the public of that to which it is entitled, brings the court system into disrepute and hampers the administration of justice.
A petition for a rehearing was denied May 14, 1959, and appellant’s petition for a hearing by the Supreme Court was denied June 18, 1959.