Fry

This is an appeal, under the provisions of section 1239 of the Penal Code, from an order of the superior court which was made after pronouncing judgment and sentence upon the defendant following his conviction by a jury of the crime of “attempted burglary of the first degree”, and a plea of guilty of a prior conviction of another felony. The defendant also attempted to appeal from an order denying a motion for new trial which he assumes to have then made.

The defendant was charged by an information filed pursuant to section 663 of the Penal Code with the crime of an attempt to commit burglary, together with a charge of a prior conviction of another felony. The information did not allege that the defendant had actually served time for the prior conviction in a penal institution. The defendant pleaded guilty to the prior conviction of felony and admitted that he had served time in a penal institution therefor. Upon trial before a jury, he was also convicted of the attempt to commit burglary. At the time of pronouncing sentence the court recited the fact that he had been charged and convicted of the crime of “attempted burglary of the first degree”, together with the charge of a…