People v. Rowland

HOUSER, P. J.

By the terms of an information that was filed against him, in count I thereof defendant was accused of the commission by him of the crime of grand theft; and by count II of the said information he was likewise accused of the violation by him of the provisions of section 503 of the Vehicle Code. In the same information it was charged that before either of such offenses had been committed defendant had been “convicted of ... a felony”. On the trial of the action the charge contained in count I was dismissed; defendant pleaded “guilty” as to the accusation that was preferred against him in count II; and thereupon waived trial by jury on the charge of “prior conviction of a felony”. Following a stipulation that was entered into by respective counsel regarding all facts pertinent to the issue, the trial court found defendant guilty as to the last-mentioned accusation. Defendant’s motion for a new trial was denied; whereupon judgment was rendered as for -conviction of the felony described in count II, with “prior conviction of a felony”. It is from such judgment, as well as from the order by which his motion for a new trial was denied, that defendant has appealed to this court.

It is undisputed that prior to his conviction of the offense specified in the second count of the information, defendant had been convicted of the offense expressly designated as a

felony

under the provisions of section 146 of the California Vehicle Act. But by reason of the fact that in punishment for the commission of that crime the judgment that was rendered against defendant provided that he pay a fine of $1,080, or in default thereof, that he serve a specified term in the county jail, and in connection therewith, in view of the statutory definition (sec. 17, Pen. Code) of what constitutes a felony, to wit, that a felony is a crime which is punishable with death or by imprisonment in the state prison, and that every other crime is a misdemeanor,—it is contended by appellant that, defendant was not convicted of a former felony, but of a misdemeanor only.

Were the question thus suggested new to the courts of this state, a discussion of the law deemed applicable thereto might

[542]

be interesting. But it happens that in the case of