In re Tartar

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[Crim. No. 1345. Third Appellate District. October 13, 1934.]

In the Matter of the Application of GEORGE P. TARTAR for a Writ of Habeas Corpus.

COUNSEL

George P. Tartar, in pro. per., for Petitioner.

U.S. Webb, Attorney-General, and Jess Hession, Deputy Attorney-General, for Respondent.

OPINION

The Court.

Petitioner was on January 2, 1930, convicted of the crime of burglary in the second degree. The information also charged petitioner with having suffered two prior convictions. Following his conviction of the crime of burglary as above stated he was adjudged to be an habitual criminal and committed to the state prison at Folsom. [1] The information failed to allege petitioner had served any term for the prior convictions, which is pre-requisite [1 Cal. App. 2d 401] to holding petitioner to be an habitual criminal. (People v. Dawson, 210 Cal. 366 [292 P. 267].)

However, the petition is premature, for the punishment of burglary of the second degree is one year to fifteen years (Pen. Code, sec. 461), and it is apparent petitioner has not yet served the term for which he was legally committed.

Writ denied.