People v. Mason

PULLEN, P. J.

Appellant was charged by information with the crime of petit theft, and with having theretofore been convicted of a felony, to wit, burglary, and having served a term therefor in the state prison, which under the provisions of section 667 of the Penal Code, constitutes a felony.

Upon arraignment the defendant admitted the prior conviction and imprisonment therefor, but entered a plea of not guilty to the charge of petit theft. He was tried and found guilty. This appeal is from the judgment of conviction.

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No claim is made that the evidence was not sufficient to support the verdict. Appellant seeks reversal upon three instructions given the jury upon behalf of the people, and that the court exceeded its jurisdiction in sentencing appellant for a felony rather than a misdemeanor.

The first instruction complained of reads iii part: “If you believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendant . . . unlawfully took the property of Montgomery Ward

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Company . . . then you should find said defendant guilty as charged in the information. "

Appellant contends this instruction failed to contain the elements of theft. Section 952' of the Penal Code provides, however, that an offense may be averred in any words sufficient to give the accused notice of the offense of wAich he is accused, and provides further, “In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.” The testimony plearly discloses the taking to be theft. That the allegation of the information was sufficient is held in

People

v.

Breyer,

139 Cal. App. 547 [34 Pac. (2d) 1065];

People

v.

Campbell,

89 Cal. App. 646 [265 Pac. 364];