Opinion
Docket No. 1699.
November 17, 1939.
APPEAL from an order of the Superior Court of Tehama County denying a motion to modify a judgment of conviction. H.S. Gans, Judge. Appeal dismissed on motion.
The facts are stated in the opinion of the court.
A.J. Tindall, in pro. per., and Horace F. Frye for Appellant.
Earl Warren, Attorney-General, and J.Q. Brown, Deputy Attorney-General, for Respondent.
Appellant pleaded guilty to the crime of burglary, which the court found to be of the second degree. He also pleaded guilty to three other felonies, and on January 26, 1939, was sentenced under the Habitual Criminal Law. (Pen. Code, sec. 644.) On July 14, 1939, he moved the court to modify the judgment of conviction to the extent of striking out that portion thereof which adjudges him to be an habitual criminal. The motion was denied, and the appeal is taken from the order of denial. The attorney-general now moves to dismiss the appeal for lack of jurisdiction.
[1] The contention made by appellant is that the information charges him with the commission of two prior crimes which are denominated as "larceny", and there is nothing to show whether the crime is a felony or a misdemeanor. It appears, however, that he was charged with the "crime of larceny, a felony", and it is further alleged in the information that he served a term therefor in the state prison in each instance. It would seem that this charges a felony, as "a felony is a crime which is punishable with death or by imprisonment in a State Prison". (Sec. 17, Pen. Code.)
Taking up the motion to dismiss the appeal, the case of People v. Carkeek, decided this day by this court ( ante, p. 499 [ 96 P.2d 132]), fully disposes of all the contentions made here, and upon authority of that case it is ordered that the appeal be dismissed.
Thompson, J., and Pullen, P.J., concurred.