People v. Mortensen

HOUSER, P. J. Defendant having been convicted of the crime of petty theft, in connection with which it was established that theretofore she had been convicted of a felony for which she had served a term of imprisonment in this state, she appeals from the judgment which was rendered against her, as well as from the order by which her motion for a new trial was denied.

The first point presented by appellant is that the evidence was insufficient to support the judgment. No useful purpose would be served by a recital of the evidence that was adduced on the trial of the action. Suffice it to say that, after a careful examination of the evidence in connection with the legal principles of law applicable thereto as attested by many decisions by the appellate tribunals of this state, it manifestly appears that appellant’s point in that regard cannot be sustained.

By an allegation contained in the information that was filed against defendant she was charged with the commission by her “of the crime of petty theft” with prior conviction of a felony, to-wit: “burglary, a felony . . . ”; [126]and that for the commission by defendant of said felony she had “served a term of imprisonment therefor in a penal institution”. In that regard, appellant complains of certain rulings made by the trial court by which her demurrer to the complaint was overruled and her motion to strike out was denied.

By referring to the clerk’s transcript herein, it is disclosed that defendant’s demurrer, besides being general in its nature, in effect also contained the objection to the complaint that it was indefinite and uncertain in that “it cannot be ascertained therefrom what offense, if any, was committed by the defendant”. The motion to strike related to the words “prior conviction of a felony, to-wit, burglary, a felony”.

It is clear that neither of said objections is tenable. In “ordinary and concise language”, as hereinabove indicated, and in accord with the provisions of section 969, section 667 (as the latter was in effect at the time of the trial of defendant and at the time when judgment was pronounced against her), and sections 950, 951 and 952, of the Penal Code, it appears that defendant was charged with having committed the offense of “petty theft with prior conviction of a felony”. Paraphrasing the pertinent language of the statute last cited, the “words” employed in the information filed against defendant were “sufficient to give the accused notice of the offense of which she was charged”. See People v. Hillard, 103 Cal. App. 698 [284 Pac. 1070] ; In re Boatwright, 216 Cal. 677 [15 Pac. (2d) 755],