People v. McGee

BARNARD, P. J.

The defendant was charged in an information filed in Riverside County with the commission of a felony and also with three prior convictions of felonies, and was found guilty. On February 27, 1936, he was sentenced to confinement in the state prison “for the term as prescribed by law for life as an habitual criminal, and that he not to be eligible for release on parole until he has served a minimum of at least twelve (12) years”. On April 7, 1937, the defendant filed in the Superior Court of Riverside County notice of a motion to modify the judgment by striking out the portion thereof adjudging him to be an habitual criminal, upon the ground that that portion of the judgment is illegal in that it is founded upon an information charging three prior convictions while only one, of those prior convictions comes within the meaning and import of section 644 of the Penal Code as limited by section 668 of that code. This appeal is from an order denying that motion.

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The appellant contends that the judgment is absolutely void upon its face because he was charged with three prior convictions which, if proved, would under section 644 of the Penal Code have subjected him to imprisonment for life without the possibility of parole while the judgment as rendered sentenced him as an habitual criminal but eligible to parole after twelve years. It is argued that this indicates that “the court of Riverside county was not certain as to some of the prior convictions” and that the judgment is, therefore, void upon its face. It is also argued that as a matter of fact two of the prior convictions alleged in the information are not such within the meaning and effect of section 644 of the Penal Code.

The information charges that the appellant was convicted in the United States District Court for the Northern District of Oklahoma of the crime of a felony, to wit, possession and sale of whiskey, that judgment was pronounced, and that he served a term of imprisonment therefor in the United States penitentiary at Port Leavenworth. It is next charged that the appellant was convicted in the District Court of the State of Oklahoma in and for the County of Washington of the crime of a felony, to wit, the larceny of an automobile, that judgment was pronounced and that he served a term of imprisonment therefor in the state prison. It is further charged that the appellant was in the District Court of Oklahoma in and for the County of Washington convicted of a crime of a felony, to wit, attempting to pass a forged instrument, that judgment was pronounced and that he served a term of imprisonment therefor in the state reformatory.