90 P. 946 | Cal. Ct. App. | 1907
Petitioner asks to be discharged from the custody of the warden of the state prison on the ground that the "judgment and sentence were and are void, that said court had no authority in law to enter said judgment or to pronounce said sentence; that the same are in excess of the jurisdiction of the court and are nullities."
The return to the writ shows that petitioner is imprisoned by virtue of a commitment issued out of the superior court of the state of California in and for the county of San Bernardino in the following form: "The district attorney, with the defendant, who had heretofore waived counsel, came into court. The defendant was duly informed by the court of the nature of the information filed against him for the crime of burglary committed on the 6th day of October, 1904, of his arraignment and plea of guilty on the 8th day of October, 1904, ofburglary in the first degree. The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him. To which he replied he had none. And no sufficient cause being shown or appearing to the court, thereupon, the court rendered its judgment: That whereas, the said Henry Haase, having been duly convicted in this court of the crime of burglary in the first degree.
"It is therefore ordered, adjudged and decreed that the said Henry Haase be punished by imprisonment in the state prison of the State of California at Folsom for the term of eight years."
It is insisted that the court had no jurisdiction to sentence the defendant because of its failure to determine the degree of the crime. In this connection petitioner cites section
The usual and proper practice undoubtedly is to charge in general terms in the information the offense of burglary without *543
specifying the entry as having been made in the day or night time. If the defendant then pleads guilty, the plea should be, in orderly sequence, "Guilty of the offense charged," to wit, burglary. The duty would then be cast upon the court to determine the degree before passing sentence. And if the court failed to determine the degree it would be prejudicial error. (People v. Jefferson,
When, as in the case at bar, the information charges burglary in general terms so as to include both degrees, why should the defendant be precluded from pleading in harmony with the facts guilty of either one of said offenses if he so desires? How is any substantial right of the defendant invaded if the court accepts his confession that the crime was committed in the night-time instead of calling a witness to prove such fact? Ordinarily, the court would determine the degree by the examination of witnesses, but it would seem to be entirely unnecessary where the defendant — presumably upon sufficient information as to the nature and consequences of the offense — confesses in effect that he committed the crime in the night-time and is therefore guilty of burglary in the first degree.
But aside from the foregoing consideration it is manifest from the record before us that petitioner is not entitled to his discharge. The only question, admittedly, that we can consider upon this application, is the jurisdiction of the court below to sentence the defendant. (Forbes v. Hyde,
In Re Eichhoff,
The doctrine is announced also in the late case ofCanadian etc. Co. v. Clarita etc. Co.,
In the case at bar it is not required that the record shall show that the court heard evidence and determined the degree of the offense, even if we assume that under the peculiar circumstances such determination was necessary. "The only material parts of a judgment are the statement of the offense for which the defendant has been convicted, omitting therefrom all that is contained in the previous papers and therefore not necessary to be repeated, and the sentence of the court. (In re Ruiz,
We have not referred to many of the decisions cited and suggestions made by counsel, as we deem the foregoing decisive of the issue.
The writ is discharged and the petitioner is remanded.
Hart, J., and Chipman, P. J., concurred. *546