4 P.2d 534 | Cal. | 1931
Lead Opinion
This is a petition for a writ of habeas corpus.
The petitioner, William J. Bost, was charged in the county of Los Angeles with the crime of murder. He was convicted of manslaughter and sentenced to San Quentin for the term provided by law. Pursuant to the judgment a commitment was issued on October 18, 1929, and on November 9, 1929, the petitioner was delivered into the custody of the warden at San Quentin. The petitioner took an appeal from the judgment and from an order denying his motion for a new trial. On August 4, 1930, the judgment and order were affirmed. (People v. Bost,
On the trial of the petitioner one Fred A. Parman appeared and testified as a witness for the defendant. Thereafter Parman was indicted in said county for the crime of perjury, involving his testimony on the trial of the petitioner. Pending the trial of Parman and on November 23, 1929, counsel for Parman filed an affidavit with the trial court, pursuant to section 1333 of the Penal Code, setting forth that Bost was a material witness for the defendant Parman in the pending action; that Bost was confined in the state prison at San Quentin and application was made, based on said affidavit, for the removal of Bost from San Quentin to Los Angeles for the purpose of giving his testimony on behalf of Parman. The superior court made the order requested and directed the warden "to permit the temporary removal of said William J. Bost from said penitentiary by the said sheriff for the said purposes". On November 26, 1929, the warden delivered Bost to the sheriff of Los Angeles County and took the latter's receipt for the prisoner, who was in due time lodged in the county jail of Los Angeles County to await the giving of his testimony.
On August 4, 1930, when the judgment against the petitioner was affirmed and on September 12, 1930, when the remittitur was filed in the superior court, the petitioner was still in the county jail. Before the remittitur was filed, but on the same day, the petitioner filed a petition for a writ of habeascorpus in said superior court. The writ was made returnable on September 18, 1930, and on the hearing thereon the writ was discharged and the petitioner remanded. In making the order last aforesaid, the court stated that an application for probation of the petitioner would be entertained. Such an application was filed. On November 18, 1930, the order committing the petitioner to the state prison was, by the court, vacated and set aside, further proceedings on the judgment of conviction were suspended, the petitioner was placed on probation for five years, and was thereupon released pursuant to the order of probation.
Believing the order of probation and release to be void for want of jurisdiction in the superior court to make the same, the respondent warden apprehended the petitioner in the city of Los Angeles and returned him to the state prison at San Quentin to complete the service of his term of imprisonment *153 under the judgment of conviction. The state board of prison directors has not yet fixed the petitioner's definite term of imprisonment and until that is done the respondent warden is holding the petitioner for the maximum period of imprisonment for the offense of which the petitioner was convicted.
[1] The foregoing statement of facts presents the question of the jurisdiction of the superior court to entertain and act upon an application for probation after a judgment of conviction in a felony case has become executed so far as that court is concerned. It must be noted that no stay of execution was ordered by the trial court as provided by section
[3] Upon the affirmance of the petitioner's appeal and the filing of the remittitur the superior court was re-invested with jurisdiction to make all orders necessary to carry the judgment into effect. (Sec. 1265, Pen. Code.) Here there was no order to make, for the judgment had theretofore become executed so far as the superior court was concerned. If the certificate staying execution as provided for in section
The petitioner places great reliance on the Lloyd case, but it is not a parallel case and does not afford a precedent for the relief which he seeks. In that case the judgment had not become executed either in whole or in part. The trial court had granted a writ of probable cause which had the effect of staying the execution of the judgment under section
Cases from other states relied upon by the petitioner are not helpful. In none of them do we find that the power of the trial court to recall the defendant from state prison, there held under a valid judgment, for the purpose of granting probation, has been sustained. It has been held in this state that the trial court is without the power, after a valid judgment is in the process of execution, to set *155
it aside and pronounce a new judgment. (People v. Conley,
[4] Assuming, as the petitioner points out, that he was detained in the Los Angeles County jail longer than was necessary after his testimony was required at the pending criminal trial, such delay did not have the effect of modifying or changing the judgment under which he was delivered to the warden. The petitioner had the right to a speedy return to the custody of the warden, when his presence in Los Angeles County was no longer required. If he conceived that his rights in that respect were being infringed, an appropriate remedy would undoubtedly have been open to him to effect his return to the state prison.
We conclude that the superior court was without jurisdiction to make the order on which the petitioner relies.
The writ is discharged and the petitioner is remanded.
Seawell, J., Langdon, J., Curtis, J., Richards, J., and Waste, C.J., concurred.
Dissenting Opinion
I dissent from the above holding. I would not object to such a holding if, in order to make it, we had receded from the doctrine of Lloyd v. Superior Court,
