Bayne

The defendant was convicted by the court sitting without a jury of the crime of burglary of the first degree, and a prior conviction of another felony. Evidence was adduced pursuant to section 1192a of the Penal Code, of the fact that the defendant was not armed with a deadly weapon at the time of the commission of the offense. He was sentenced to imprisonment in the state prison at Folsom for the term prescribed by law. The commitment is in the usual form and recites the fact that the defendant was convicted of burglary of the first degree and a prior conviction of another felony. It did not allege that the defendant was unarmed at the time of the commission of the offense. No appeal was taken from that judgment.

After one and a half years of his sentence had been served, the defendant presented to the trial court a motion to vacate the judgment for failure to specify therein the facts upon which the degree of the crime was determined, and because it contained no statement that the defendant was not armed with a deadly weapon. The motion to vacate the judgment was denied August 28, 1933. At that time the court amended the judgment by reciting therein that the defendant was…