177 P. 157 | Cal. | 1918
The petitioner applied for a writ of habeas corpus asking for his release from the state prison. Upon the hearing thereon the following facts were made to appear: The crime for which the petitioner was convicted was committed on February 12, 1917. On the second day of November, 1917, by a judgment of the superior court of the county of San Joaquin, he was sentenced to suffer imprisonment in the said state prison for an indeterminate period of not less than one nor more than ten years, under the indeterminate sentence law, which had gone into effect in the month of July of that year. In the month of March, 1918, this court decided the case of In re Lee,
We cannot agree with this contention. In accordance with our ruling in the case of In re Lee, supra, the first judgment and sentence under which he was confined was void, and he was, therefore, entitled at any time to have obtained his release therefrom by a writ of habeas corpus. That judgment and sentence being void, the petitioner was properly returned under the ruling of In re Lee, supra, to the court in which he was convicted for the imposition of a proper judgment and sentence. This judgment and sentence was not an amendment of the former void judgment and sentence, but was an original and the only legal judgment and sentence in his case. In its pronouncement the trial court was entitled to consider and take into account the history of the case from its inception, the nature and enormity of the defendant's crime, the mitigating circumstances, if any, attending or succeeding its commission, the period of time the defendant had already been confined in the county jail or in any other place of incarceration. The court was also entitled to take into consideration the fact that by its former void judgment it had sentenced the defendant to a term in the state prison the minimum of which was one year and the maximum of which was ten years, during the whole of which maximum the defendant might have been required to serve under said first judgment and sentence had the same been legal. The fact that the second judgment and sentence of the court was for the minimum term of one year would seem to argue strongly that the trial court in imposing the same did take these facts into consideration, but, be that as it may, we can see no reason for holding that the second and only valid judgment and sentence in the case of the petitioner should not speak from the date of its rendition, and that the term of imprisonment fixed thereunder should not commence to run upon the actual delivery of the defendant at the place of imprisonment under the express terms of section
The petitioner has directed our attention to the cases ofIn re Silva,
The writ is discharged and the petitioner remanded.
Sloss, J., Wilbur, J., Victor E. Shaw, J., pro tem., Melvin, J., Lorigan, J., and Angellotti, C. J., concurred.