People v. Birdsell

PULLEN, P. J.

Appellant was charged in counts 1 and 2 with making and passing two fictitious checks. In counts 3, 4 and 5 he was charged with having suffered prior convictions of forgery. Upon arraignment appellant entered a plea of guilty to counts 1 and 2 and admitted having suffered the three prior convictions of forgery as charged in counts 3, 4 and 5.

The information failed to allege that appellant had served a term in any state or federal prison for the crime set out in each of counts 3, 4 and 5, an essential element in the definition of an habitual criminal, but upon arraignment for judgment appellant admitted in open court that he had actually served a separate term in a state prison upon each of said separate felonies charged in the three counts. This was sufficient.

(In re Boatwright,

216 Cal. 677 [15 Pac. (2d) 755] ;

People

v.

Harvey,

137 Cal. App. 22 [29 Pac. (2d) 787].)

Appellant also urges he was illegally adjudged an habitual criminal because the offense set out in count 1 of the complaint was committed July 23, 1931, and as pointed out in the case of

People

v.

d’A Philippo,

220 Cal. 620 [32 Pac. (2d) 962], forgery did not become an ingredient of the provisions relating to habitual criminals until August 19, 1931 (sec. 644 of the Penal Code, Stats. 1931, p. 1052), and therefore a conviction for forgery prior to August 19, 1931, would

[751]

not have supported a finding the accused was an habitual criminal under that statute. However, in July, 1931, and at the time the crime charged in count 1 of the information was committed, section 644 of the Penal Code read: “ . . . Every person convicted in this state of any felony who shall have been previously three times convicted, either in this state or elsewhere, of any felony shall be punished by imprisonment in the State prison for not less than life and shall not be eligible to parole ...”