In re Boatwright

The petitioner, James Boatwright, who at present is incarcerated in the state prison at San Quentin, seeks by this application for a writ of habeas corpus to be discharged therefrom. The facts upon which the petition is based are as follows:

On October 4, 1927, by an information filed in Fresno County, petitioner was charged with “a felony, to-wit: Petit Theft, with Prior Convictions”. The charge was based on the alleged theft by petitioner of certain articles valued at $25. The information, in addition to charging the petit theft likewise charged petitioner with four previous felony convictions, as follows: burglary in Oklahoma; first degree burglary in Los Angeles County; attempt to commit burglary, second degree, in' the city and county of San Francisco, and second degree burglary in Yolo County. In each case the information charged that Boatwright had previously been convicted of the offense, “that the judgment upon said conviction [or plea of guilty] was pronounced, given and made [setting forth the date thereof] . . . and has never since been reversed, annulled or set aside”. In no case did the information charge that petitioner had served a term in any penal institution for any of the prior felonies. Upon arraignment, petitioner pleaded not guilty to the charge of petit theft, but admitted “said prior conviction as charged in the information”. In due course, petitioner was tried on the petty theft charge and was found 1 ‘ Guilty as charged in the information. ” No evidence was introduced at the trial concerning the prior convictions. On November 5, 1927, petitioner appeared for sentence. At that time, the sentencing judge interrogated petitioner concerning the prior convictions. and elicited the information from him that he had been convicted of three former felonies, and had served time in a penal institution for each of them. He denied that he

“That Whereas, The said James Boatwright, having been convicted of the crime of petit theft with prior convictions,

“It is Therefore ordered, adjudged and decreed, that the said James Boatwright be punished by imprisonment in the State Prison of the state of California, at San Quentin, California, until legally discharged.”

So far as the record shows, no appeal was taken from that judgment. Pursuant to the judgment, petitioner was taken to San Quentin on November 6, 1927, where he ever since has been held in execution of the sentence. Petitioner contends that he has long since served the time required by the judgment. He contends, in the first place, that petit larceny is not a felony, but is only a misdemeanor; that in order to give petit larceny the status of a felony, under the provisions of section 667, subdivision 2, of the Penal Code, as it read in 1927, it was necessary for the prosecution to plead and prove not only the prior felony convictions, but also that petitioner had served a term therefor in some penal institution; that since the prosecution failed to plead or prove the fact of service of a term in a penal institution, all that petitioner has been convicted of is petit larceny with prior felony convictions, which is only a misdemeanor.

In the second place, petitioner contends that even if he has been convicted of a felony, the maximum penalty therefor is five years under the express terms of section 667, subdivision 2, of the Penal Code as it read in 1927. Petitioner urges that the five-year sentence, less the credits which it is alleged, and not denied, he has earned, has long since expired. The warden of San Quentin, however, has refused to release petitioner, for the reason that he interprets the judgment of conviction as one imposing a life sentence, without parole, under the terms of the Habitual Criminal Act, as contained in section 644 of the Penal Code, as it reád in 1927.

The information, being in the language of the statute, is sufficient. Section 969 of the Penal Code provides: “In charging in an indictment or information the fact of a previous conviction of felony, ... it is sufficient to state

The prior convictions were specifically set forth and were in full compliance with the above section of the Penal Code.

It is true that the information did not specifically allege that the petitioner had served time upon each of the prior convictions alleged against him. As we have observed, the statute did not make such an allegation an essential part of the pleading. (Sec. 969, Pen. Code, as amended in 1927, Deering.) It was essential, however, that proof of service under said prior convictions in a penal institution be shown, in order to give the court jurisdiction to adjudge the defendant an habitual criminal. At least three felonies having been alleged against petitioner, for each of which he admitted, before the pronouncing of judgment, that he had served a term in a penal institution, as required by section 667 of said Penal Code, as it stood at the time of conviction, we are of the view that the fact that the information was silent on this subject would not entitle him to his discharge. It may be observed that the better practice would be to allege service of time under said prior convictions, but inasmuch as the petitioner admitted before the court pronounced its sentence upon him that he had served a term in a penal institution upon three of said prior convictions, we are at a loss to understand how he could have suffered any prejudice by a failure of the information to contain the matter which was necessary to give the court jurisdiction to adjudge him to be an habitual criminal.

Section áy2, article VI, of the Constitution provides: “No judgment shall be set aside, or new trial granted, in any ease, . . . for an error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

How can it be said, in the light of the facts presented by the petitioner, that petitioner has in anywise suffered prejudice by the omission of the information to state

As above observed, we are of the view that it is the better practice to allege not only the prior convictions in the manner pointed out by the statute, but also the fact that a term was served under each. This, at least, would be the safe rule to be followed in all such cases.

We now come to a more serious question.

Section 667 of the Penal Code, so far as here pertinent, as it stood in 1927, provided: “Every person who, having been convicted of any offense punishable by imprisonment in the state prison, and having served a term therefor in any penal institution, commits any crime after such conviction, is punishable therefor as follows:

“1. If the offense of which such person is subsequently convicted is such that, upon a first conviction, an offender would be punishable by imprisonment in the state prison, such person is punishable by imprisonment in the state prison for the maximum period for which he might have been sentenced, if such offense had been his first offense.

“2. If the subsequent conviction is for petit larceny, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding five years, provided, however, that any person who has been, or who shall hereafter be, sentenced to the state prison shall be subject to parole by the state board of prison directors, under the restrictions now provided by law for the parole of first-term prisoners, any act to the contrary notwithstanding.”

The question presented is whether or not the conviction of petitioner herein on the charge of petit theft, taking into consideration the prior convictions which he had suffered, amounted to a felony. If not, then a greater punishment than imprisonment for five years could not have been imposed. In other words, is not the language of section 667, as the law stood when petitioner was convicted, so specific as to make it clear that the legislature ex industria, provided that, upon a conviction of petit larceny, prior convictions, however many, could not be considered in their cumulative effect to exceed a maximum of five years’ imnrisonment?

Petit larceny, or petit theft, is not of itself a felony, and becomes such only when it is superadded to some other offense of which the party charged has suffered conviction, and this is done, not to enlarge the scope of the crime, but to add to the punishment of the person who commits it, for his many prior violations of the law.

The language of our statute is so clear and unequivocal as to compel this court to hold that the legislature intended, by the enactment of said subdivision 2 of section 667 of the Penal Code, under which petitioner was convicted, that on a conviction of petit theft, no greater penalty is to be imposed than imprisonment for a period of five years, notwithstanding the fact that the defendant had suffered other convictions and served time thereunder on more serious charges than the petit charge, of which he was lastly convicted. The section of the code deals ex industria with a specific subject and leaves nothing open for construction.

It is brought to our attention that the warden of the state prisons, in the interest of the discipline of said prisons, are desirous that this court should pass upon the question as to whether or not the court, in pronouncing judgment, should make the order, where the facts warrant such finding, that the person charged is an habitual criminal. The question is not directly involved in the instant case, inas

We are of the view that the writ should be granted and the prisoner discharged from custody, it appearing that he has served a term greater than five years.

It is so ordered.

Preston, J., and Waste, C. J., concurred.

I concur in the judgment but not upon the grounds stated in the opinion. On the other hand, I think the petitioner is entitled to his discharge for