Frey v. Superior Court

FRICKE, J.,

pro tem.

Petition for writ of mandate to compel the trial court to reinstate and hear petitioner’s motion to set aside the judgment and in the event of a denial of such motion to allow petitioner to file a notice of appeal. Eespondents have demurred to the petition.

Petitioner was charged by information with the crime of burglary and with having suffered a prior conviction of a felony and having served a term of imprisonment therefor.

Petitioner's contention, that the failure to allege that' the entry was made “feloniously” renders the information fatally defective, is without merit.

Likewise the contention that the verdict is void, because it fails to include the circumstances which constitute a burglary of the first degree, is untenable.

(People

v.

O’Neal,

2 Cal. App. (2d) 551 [38 Pac. (2d) 430].)

Neither is there merit in the claim that the judgment is defective because it fails to set forth the factor or factors which made the case one of first degree burglary.

(People

v.

Rhodes,

137 Cal. App. 385 [30 Pac. (2d) 1026].)

On November 9, 1933, the trial court denied petitioner’s motion to set aside the judgment, the grounds relied upon being those presented above. It appears that at the time of sending to the trial court the motion to set aside the judgment, petitioner, in anticipation of a denial, attached to his motion a notice of appeal. It appears, however, that the notice of appeal was not filed and that no notice of appeal whatever was given after the denial of the motion and no appeal was perfected. The case at bar is clearly distinguishable from that of

People

v.

Ramirez,

137 Cal. App. 472 [30 Pac. (2d) 577], in which the notice of appeal similarly accompanied a motion to set aside the judgment

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