In Re Boatwright

The petitioner, James Boatwright, is a prisoner in the state prison at San Quentin and seeks to be discharged therefrom on habeas corpus. Pie was charged in the trial court with petty theft and four prior convictions of felony. He admitted the prior convictions, pleaded not guilty to the charge of petty theft and after trial by jury was found guilty. The judgment of sentence was that he be imprisoned in the state prison at San Quentin until legally discharged. The alleged theft was committed on September 6, 1927, petitioner was sentenced on November 5, 1927, and so far as the record shows he took no appeal from the judgment of conviction. In support of his application he contends that the maximum penalty imposed by law for the commission of the crime for which he' was committed to prison is five years imprisonment (Pen. Code, see. 667), and that after deducting thereform the credits allowed by the prison board he has served more than the full period of a five-year sentence, and therefore is entitled to immediate discharge. In opposition to the application it is claimed that by virtue of the prior convictions of felony petitioner’s case falls within the so-called Habitual Criminal…