I concur in the judgment but not upon the grounds stated in the opinion. On the other hand, I think the petitioner is entitled to his discharge for *Page 685 the reason that it was not alleged in the information under which he was prosecuted that he had served a term of imprisonment under his prior convictions, or under any of them. Section 667 of the Penal Code as it stood prior to its amendment in 1931 required in the words of the main opinion, ex industria, that an accused convicted of petit theft, after a prior conviction of a felony, shall have served a term of imprisonment therefor in a penal institution before the crime of petit theft can be raised to a felony. In construing this section we held in People v.Dawson, 210 Cal. 366, 292 P. 267, that it was necessary to allege and prove all the statutory requirements going to make up the crime charged, and that a judgment based upon an information charging the defendant with forgery and a prior conviction of a felony without alleging that the defendant had served a term of imprisonment therefor, would be construed simply as a judgment that the defendant be punished, not as prescribed by section 667 of the Penal Code, but only as was provided by the appropriate statute for a first offender convicted of a crime of forgery. Applying the principle of law enunciated in that case to the judgment under which the petitioner was sentenced, all we have is a judgment of conviction of petit theft. The information here, as in the case of People v. Dawson, supra, failed to bring the case against the defendant charged within the terms of section667 of the Penal Code. As the requirements of the statute regarding service of time after previous conviction was one of the essential elements of the crime of which petitioner was convicted, it would be violative of one of his substantial rights to punish him therefor without charging and proving this element of the offense. In such a case section 4 1/2 of article VI of the Constitution should not be applied. The fact that the petitioner after his trial admitted that he had served time on one or more of these prior convictions would not, in my opinion, cure the fatal defect in the information. *Page 686