I concur with the conclusion that the writ should be discharged and that the petitioner should be remanded to custody, but I cannot concur with certain other conclusions reached in the majority opinion.
It is conceded by petitioner that the indictment uses the word “arson” in describing the offenses of which he stands convicted, and that it “purports to charge the crime of arson”; that he entered his plea of guilty to the crime of “arson as charged” in each of four counts of the indictment; that the judgments of conviction recited his “plea of guilty of arson as charged” in each of said four counts; and that he was sentenced on each of said four counts “for the crime of arson as charged.” It is further conceded that at the present time, as well as at all times pertinent to this discussion, “the only statute defining the crime of arson is section 447a of the Penal Code enacted in 1929”; and that the offense denounced by section 448a of the Penal Code “is not arson.”
While making these concessions, petitioner nevertheless relies upon an alleged defect in the allegations of the indictment to charge him with “arson” and contends that “the conviction and sentence of petitioner are void.” The majority opinion does not sustain petitioner’s contention in toto but does sustain it in part. The conclusion reached in the majority opinion is that the judgments of conviction cannot be permitted to stand as judgments of conviction for the crime of “arson” but that they may be permitted to stand as judgments of conviction for the crime denounced by section 448a of the Penal Code. While the majority opinion attempts to deny the implication, it necessarily follows from the reasoning of the majority opinion that if there were no catch-all section similar to section 448a of the Penal Code, upon which reliance is there placed, petitioner would be entitled to his absolute release in this proceeding.
The actual effect of the majority opinion is to permit *55petitioner to use this proceeding on habeas corpus as a substitute for a direct attack upon the indictment by demurrer and as a means- to strike down petitioner’s convictions on four counts of “arson” (Pen. Code, § 447a) merely because of an alleged defect in the indictment. The extension of the use of habeas corpus to cover the situation presented by the record before us has been uniformly condemned by the prior decisions of this court.
In the early case of Ex parte Williams, 121 Cal. 328, this court said at pages 330-331 [53 P. 706] : “. . . the proceeding [habeas corpus] may not be made to subserve the office of a demurrer; and if the facts alleged squint at a substantive statement of the offense, no matter how defectively or inartificially they may be stated, or however confused and beclouded they may be rendered through intermingling them with immaterial or unnecessary averments, the writ will not lie. (Ex parte Whitaker, 43 Ala. 323; Matter of Prime, 1 Barb. 340.) ” This rule has been consistently followed in the later decisions. (In re Leach, 215 Cal. 536 [12 P.2d 3]; In re Wilson, 196 Cal. 515 [238 P. 359]; In re Kavanaugh, 180 Cal. 181 [180 P. 533]; In re Ruef, 150 Cal. 665 [89 P. 605]; In re Simmons, 71 Cal.App. 522 [235 P. 1029]; see, also, 13 Cal.Jur. 232.) The scope of inquiry upon habeas corpus into the sufficiency of an indictment “is limited” (In re Leach, supra, at p. 547) and “where an indictment purports or attempts to state an offense of a kind of which the court assuming to proceed has jurisdiction the question whether the facts charged are sufficient to constitute an offense of that kind will not be examined into on habeas corpus.” (In re Ruef, supra, at pp. 666-667.)
As above stated, petitioner concedes that the indictment “purports to charge the crime of arson,” and it is clear that the facts alleged do more than merely “squint at a substantive statement” of that offense. The sole defect to which attention has been called is the allegation in each of the four counts that petitioner did wilfully, unlawfully, feloniously, and maliciously set fire to and burn a certain “store building.” Petitioner contends that as “arson” can be committed only by burning “any dwelling-house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto” (Pen. Code, § 447a), he is entitled to relief on habeas corpus.
In my opinion, there is no merit in petitioner’s contention. *56It may be assumed for the purpose of this discussion that •the indictment is defective and that it would have been subject to direct attack (see, however; People v. Russell, 81 Cal. 616 [23 P. 418]), but such assumption does not determine the question before us in this proceeding. Upon direct attack, the prosecution would have had the opportunity of amending to allege the fact, if it were a fact, that each alleged “store building” was likewise used as a “dwelling-house.” No such opportunity can now be afforded in the event that the judgment finding petitioner guilty of “arson” upon an indictment purporting to charge “arson,” which judgment has long since become final, should be held in this proceeding .to be insufficient as a judgment of conviction of “arson.” It is a matter of common knowledge that many store buildings are likewise used as dwelling houses. The burning of such buildings has been held to constitute “arson” under .statutes similar to our own. (People v. Oliff, 361 Ill. 237 [197 N.E. 777]; Wade v. State, 195 Ga. 870 [25 S.E.2d 712].) It therefore does not affirmatively appear from the face of the indictment that the offense charged did not constitute “arson,” and, in my opinion, the allegations of each count were ample, under the rules set forth in the above-mentioned authorities, to withstand the attack now made in this proceeding on habeas corpus. To hold -otherwise, as does the majority opinion, has the effect of declaring, contrary to the rule of the above-mentioned authorities, that the scope of the inquiry on habeas corpus into the sufficiency of the indictment is unlimited rather than limited.
It is significant to note that not a single authority cited in the majority opinion sustains the conclusion that the indictment in this case should be held insufficient in this proceeding to sustain the judgments of conviction on four counts of “arson.” On the contrary, the reasoning found in the cases above cited clearly shows that the indictment here should be held sufficient for the purpose mentioned. As is said in In re Simmons, supra, 71 Cal.App. 522, at page 530: “It is claimed that the pleading states no offense known to the law because it fails to allege that the liquor contained - one-half of one per cent or more of alcohol by volume, or that it was fit for use for beverage purposes. There is nothing in -the complaint which tends to negative the idea that the liquor in petitioner’s possession contained at least as much as one-half of one per cent of alcohol. The allegation that it contained ‘more, than one-third of one per cent alcohol by *57volume’ is entirely consistent with the fact that its alcoholic content was as much as or more than one-half of one per cent.” So here, the allegations that petitioner burned four “store buildings” do not negative, and are entirely consistent with, the fact that such buildings may have likewise been used as “dwelling-houses.” Petitioner made no point at the time of his conviction in 1939 that he had not in fact committed four offenses of “arson” but, on the contrary, he pleaded guilty to each of the four offenses denominated in the indictment as “arson.” In this proceeding on habeas corpus he merely rests upon an alleged defect in the allegations of the indictment upon which he was convicted, and in my opinion, he should not be permitted to prevail.
The majority opinion alludes to the history of the offense called “arson.” It is clear, however, that since 1929 there has been but one offense known in this state as “arson,” being the offense defined as “arson” in section 447a of the Penal Code. In view of the express statutory definition of “arson” found in that section and in view of the fact that the indictment purported to charge the offense of “arson” and cannot be held in this proceeding to be insufficient to charge that offense, all reference to the early history of the offense called “arson” becomes immaterial in this discussion. Nor does the case of In re Bausino, 22 Cal.2d 247 [138 P.2d 297], lend support to the conclusions reached in the majority opinion. In that case there was no claimed defect in the indictment or information which charged petitioner with a violation of the State Narcotic Act. The only question there was whether petitioner’s maximum term was six years or ten years, which question in turn was dependent, under the terms of the act, upon whether petitioner had suffered a prior conviction of a felony. (See Stats. 1929, p. 385, § 6 as amended by Stats. 1935, p. 2203, § 5b, at p. 2207.) The judgment of conviction was silent on this subject, but it appeared from the face of the record that petitioner had been charged with and had admitted such prior conviction. Under such circumstances, it was properly held that petitioner’s maximum term was ten years rather than six years, despite the failure of the trial court to mention the prior conviction of a felony in the judgment of conviction. That case is in no way inconsistent with the above-cited authorities dealing with alleged defects in the information or indictment, and it sheds no light on the problem before us.
*58If petitioner may not prevail upon his technical claim relating to the sufficiency of the indictment, then he stands convicted of four primary offenses of “arson.” He was also charged with, and he admitted, the following three prior convictions: (1) grand larceny in North Dakota; (2) burglary in California; and (3) grand larceny in the first degree in Minnesota. He was therefore adjudicated to be an habitual criminal. The question arises as to his eligibility for parole.
I cannot agree with the conclusion reached in the majority opinion that petitioner is now eligible for parole by reason of having served a term exceeding seven calendar years from the date of his delivery to the warden at Folsom. That conclusion is based upon the premise that petitioner does not stand convicted of the primary offense of arson, and' that therefore petitioner falls within the class of persons covered by the second sentence of section 3048.5 of the Penal Code. In my opinion, petitioner does stand convicted of the primary offense of arson, which offense still remains one of the primary offenses upon which an habitual criminal adjudication may be based (see Stats. 1945, ch. 934, amending § 644, 3047, and 3048, and adding § 3048.5 of the Pen. Code). Under the present section 3048.5 (Stats. 1945, ch. 934) petitioner is therefore a person “heretofore adjudged” to be an habitual criminal and “who would have been adjudged or determined to be an habitual criminal under . . . Section 644 of said code as amended by this act . . .”; and the time at which such a convicted person may be eligible for release on parole is dependent upon whether he has suffered two or three prior convictions within the meaning of section 644 of the Penal Code. As the determination of this question does not involve an attack upon the habitual criminal adjudication but merely determines the effect of such adjudication in its relation to eligibility for release on parole, I agree that petitioner should be accorded the widest latitude in this proceeding in proving that one of the three prior convictions was for an offense which, if committed in this state, would not have constituted one of the felonies specified in section 644 of the Penal Code. (See concurring and dissenting opinion in In re McVickers, 29 Cal.2d 264, 281 [176 P.2d 40].) Petitioner has successfully assumed the burden of proving that fact in this proceeding. He has shown, and it is conceded, that his conviction of grand larceny in North *59Dakota was upon an information in which the value of the property was definitely specified and the total value was affirmatively alleged as “making a total value of all property taken of $47.00.” His North Dakota offense would have constituted only petit larceny rather than grand larceny if committed here, and, under the circumstances, he is therefore entitled to be treated as one who has suffered two rather than three prior convictions of felonies specified in section 644 in determining his eligibility for parole. This brings petitioner within the provisions of the first sentence of section 3048.5 of the Penal Code rather than the second sentence of said section as declared in the majority opinion.
As petitioner was sentenced on December 26, 1939, and it does not appear that he has served the minimum time required to make him eligible for a release on parole under the provisions of the first sentence of section 3048.5 of the Penal Code, I believe that the writ should be discharged and that petitioner should be remanded without any declaration that he has a present “right to have a request for parole considered and determined by the Adult Authority in the regular course of its proceedings.”
Edmonds, J., and Traynor, J., concurred.