In Re Gilbert

KNIGHT, J.

Petitioner is imprisoned in the state prison at Folsom by virtue of a commitment issued out of the superior court of the state of California in and for the county of Alameda, and seeks to be released on

habeas corpus

upon the ground that the judgment of sentence is void.

The uncontroverted facts are that on November 24, 1926, petitioner was charged in said court with having attempted to commit the crime of burglary and with having suffered a prior conviction of burglary in the second degree. He entered a plea of not guilty to the former and admitted the latter, and upon trial was found guilty of an attempt to commit burglary in the first degree. The judgment of sentence was that he “be confined in the state prison of the State of California at Folsom as prescribed by law.”

An attempt to commit burglary in the first degree is punishable by imprisonment in the state prison for a term not exceeding one-half of the longest term of imprisonment which may be imposed upon conviction for the offense so attempted (Pen. Code, sec. 664). The minimum punishment prescribed for a conviction of burglary in the first degree is five years’ imprisonment in the state prison (Pen. Code, sec. 461) and the maximum punishment is imprisonment during the natural life of the offender or any number of years not less than that prescribed (Pen. Code, sec. 671). Where, however, as here, a person has once been convicted of an offense punishable by imprisonment in the state prison and he has served a term therefor in any penal institution, and subsequently he commits an offense punishable by imprisonment in a .state prison, the penalty prescribed therefor is imprisonment in the state prison for the maximum period for which he might have been sentenced if such

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subsequent offense had been his first offense (Pen. Code, sec. 667). Therefore, if the provisions of the foregoing code sections are to be followed, the only sentence which could be imposed upon petitioner is that he be imprisoned in the state prison for the maximum term of one-half of his natural life; and it is conceded on the part of the state that such a sentence would be void, because “what the actual life of a particular person would be, and what would be the half of it, cannot be known. ’ ’