People v. Martin

WOOD (Fred B.), J.

In support of his appeal from a judgment entered upon conviction of second degree burglary, with three priors, defendant Jack Martin urges a number of points.

He says there was no sworn complaint and no preliminary hearing. Counsel for the state says there were. The record is silent. In such a case there is a presumption that the information was regularly issued, hence was preceded by a sworn complaint and a preliminary hearing. Moreover, this is a point which a defendant is precluded from making except by timely motion to set the information aside, as provided in section 996 of the Penal Code.

(In re Razutis,

35 Cal.2d 532, 534 [219 P.2d 15] and cases there’cited.) It comes too late now.

Defendant assigns error because his trial did not start within the 60-day period prescribed by section 1382 of the Penal Code. But the clerk’s transcript shows that on the very day the information was filed (December 24, 1953) defendant appeared in court and personally waived “his statutory time to an early trial date.” Thereupon, the court set the trial for March 9, 1954, at which time it in fact commenced and then proceeded, without objection upon the part of the defendant. He is in no position now to object.

He assigns error because the information charged “burglary,” not “second degree burglary,” and thus did not inform him of the true nature of the charge; also that, under such a charge, it was error for the court to instruct the jury

[364]

that if burglary was committed it was second degree burglary. Neither point is well taken. An allegation of “burglary” includes burglary of whatever degree.

(People

v.

Collins,

117 Cal.App.2d 175, 181 [255 P.2d 59].) The instruction was proper because the evidence, at the most, would support but second degree burglary. The place entered was not an inhabited dwelling house. No participant was armed with a deadly weapon. No assault was committed upon any person. (See Pen. Code, § 460.)

Defendant erroneously claims that the corpus delicti was not proven. The owner of a liquor store testified that his store was broken into and liquor taken therefrom. (See 14 Cal.Jur.2d 183-184, § 4.)