In Re Stroff

THOMPSON, J.

This is a petition for a writ of

habeas corpus.

The petitioner was convicted of the crime of burglary upon an information duly filed in the superior court by the district attorney of Humboldt County pursuant to the provisions of section 809 of the Penal Code. The information charged the accused with “wilfully, unlawfully, feloniously and burglariously entering that certain store building known as Brizard Store . . . with the felonious intent then and ■there to commit the crime of theft”. His cause was regularly 'set for trial on September 4, 1928. He duly waived the right to be represented by counsel and thereupon entered his plea of “guilty of the offense charged in the information”. Having waived time for sentence, he was duly sentenced to

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imprisonment in the state prison at San Quentin for the term prescribed by law. The judgment of commitment which was certified by the clerk on that day fails to show that the court determined the degree of burglary as required by section 1192 of the Penal Code. The proceedings of the trial, which were fully reported and which are before this court upon this proceeding, show that the court failed to determine the degree of burglary to which the defendant pleaded guilty. The information merely charges the defendant with the crime of burglary. It does not charge facts from which the degree of the crime may be ascertained. While he was charged with entering a “store building’’, it may be true that the facts will show the offense was committed in the night-time, or that he was then armed with a deadly weapon, or that he made an assault upon some person in the commission of the crime. Under any such circumstances he would be guilty of burglary of the first degree. If it was an uninhabited store building, and the offense was committed without the preceding circumstances, then he would be guilty of burglary of the second degree only.

The information which charges the petitioner with the crime of burglary in the language of section 460 of the Penal Code is sufficient. It is apparent that the accused might be found guilty of burglary of the first or tire second degree under that charge. He merely pleaded guilty to burglary.

It is contended the petitioner is entitled to his discharge from custody for the reason that he was not preliminarily examined and held by a magistrate pursuant to section 860 of the Penal Code prior to . the filing of an information against him, and because the court failed to fix the degree of the crime of burglary to which he pleaded guilty, as required by section 1192 of the Penal Code.