Ex parte Dobson

31 Cal. 497 | Cal. | 1867

By the Court, Rhodes, J.:

It is provided by section four hundred and sixty-three of the Criminal Practice Act that “ when a judgment has been pronounced, a certified copy of the entry thereof in the mihutes shall be forthwith furnished to the officer whose duty it is to execute the j udgment, and no other warrant or authority is necessary to justify or require the execution thereof, except when judgment of death is rendered.” The return to the writ of habeas corpus shows that the prisoner is held under a writ issued by the Clerk, commanding the Keeper of the State Prison to keep the prisoner in safe custody in the State Prison until the judgment mentioned in the writ is satisfied or the prisoner discharged by due course of law; but the writ neither purports to nor contains a certified copy of the judgment, nor does it appear that such copy was furnished to the officer whose duty it was to execute the judgment.

The prisoner is therefore entitled to his discharge, and it is so ordered.

Mr. Justice Sanderson delivered the following concurring opinion, in which Mr. Justice Shafter concurred :

The petitioner is held in custody by tbe Warden of the State Prison, and asks to be discharged from the custody of that officer upon the ground that the process under which he is held is defective in matter of substance.

What shall be final process in criminal actions, except where the punishment is death, is prescribed by section four hundred and sixty-three of the Criminal Practice Act. It must be a certified copy of the judgment as entered in the minutes of the Court. What the judgment must be is prescribed in section four hundred and sixty-two. By that section, as we held in Ex parte Ring, 28 Cal. 247, the judgment is required to state the offense of which the defendant has been convicted and the punishment imposed or adjudged by the Court.

The process under which the petitioner is held does not respond to the calls of the statute. It does not purport to be a certified copy of the judgment, if any, which was rendered against the defendant. On the contrary, it is a document addressed to the Sheriff of the County of Calaveras, and issued by the Clerk of the Court, in which a brief history of the action and the proceedings therein is given, compiled apparently by the Clerk from the records of the Court. Regarded as a final process, it is wholly unauthorized by the statute, and therefore has no -validity as such. The petitioner is entitled to be discharged, and I therefore concur in the order.