22 P.2d 770 | Cal. Ct. App. | 1933
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
The information which charges the petitioner with the crime of burglary in the language of section
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
[1] There is no merit in the assertion that the petitioner was not properly examined or held for trial by a magistrate as required by section
[2] Moreover, having failed to object to the proceedings, and having failed to move to set aside the information under the provisions of section
"The indictment or information must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:
. . . . . . . . . . .
"If it be an information:
"1. That before the filing thereof the defendant had not been legally committed by a magistrate."
The following section of the Penal Code provides that:
"If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in the last section."
[3] Clearly there was a mere irregularity in the proceedings of the trial court in failing to determine the degree of burglary of which the petitioner was duly convicted. This irregularity does not invalidate the judgment of conviction. Under such circumstances it is proper to remand the prisoner with directions to the trial court to fix and determine the degree of the crime of which he has been convicted. (In re Lee,
The writ is discharged and the prisoner is remanded, with directions to the warden of Folsom state prison to deliver the petitioner into the custody of the sheriff of Humboldt County at a time to be fixed by the superior court of that county without unnecessary delay for the purpose of ascertaining and fixing the degree of the crime of burglary of which he was convicted, and that he be then returned to the warden of that prison to be held until his term of imprisonment shall have been completed.
Pullen, P.J., and Plummer, J., concurred.