In Re Taylor

PEEK, J.

Petitioner contends that his present confinement by the Warden of Folsom Prison is illegal in that the judgment of commitment under which he received sentence is void in part, and that the maximum term prescribed under the valid portion of the judgment has been served.

By an amended information filed in the Superior Court of Los Angeles County, on May 11, 1934, petitioner was charged with the commission of the crime of burglary, a felony, and also was charged with having suffered four prior convictions for crimes amounting to felonies.

Petitioner was found guilty by a jury of the crime of burglary in the second degree and also found guilty of haying suffered two prior convictions and serving terms of imprisonment therefor. No evidence was produced in support of the allegations as to the other two prior convictions suffered, and the jury, upon advice of the court, found these prior convictions to be not true.

On June 4, 1934, the Superior Court of Los Angeles County pronounced judgment against petitioner for the crime of burglary and for the two prior convictions. The court decreed that he be punished by imprisonment in the State Prison at Folsom for the term prescribed by law, and by virtue of the provisions of section 644 of the Penal Code petitioner was adjudged to be an habitual criminal.

The petitioner has directed his attack against that portion of the amended information charging:

“That before the commission of the offense hereinabove set forth in this amended information, said defendant Wayne Taylor (under the name of J. A. Farrell), was, -in the Superior Court of the State of North Carolina, in and for the County of Wilson, convicted of the crime of Larceny, a fel

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ony, and the judgment of said court against said defendant, in said connection was, on or about the 7th day of February, 1931, pronounced and rendered, and said defendant served a term of imprisonment therefor in the state prison. ’ ’

In this regard it is his contention that the portion of the judgment decreeing him to be an habitual criminal is void in that the basis for such an adjudication, i. e. two prior convictions, of a felony within the meaning and terms of sections 668, 487 and 644 of the California Penal Code, does not exist. In support of this contention petitioner has produced and submitted a certified copy of an indictment and judgment of Wilson County, North Carolina. He argues that as the North Carolina indictment charges him with the theft of tobacco of the value “of One Hundred Dollars” only, such prior conviction does not meet the requirements of section 644 of the Penal Code; that to adjudge a defendant an habitual criminal he must have been convicted twice previously of felonies enumerated in said section, and that under the requirements of the provisions of section 668 of the Penal Code the crime committed in such other state, in order to constitute such a felony, must be an offense, which if committed in this state, would be punishable by imprisonment in the state prison. Therefore he argues theft of tobacco in North Carolina, of the value of only $100, could not constitute grand theft (one of the crimes enumerated in section 644) under the laws of California, as section 487, subdivision 1 of the Penal Code, in defining that crime, provides: