21 P.2d 132 | Cal. Ct. App. | 1933
Petitioner is imprisoned in the state prison at San Quentin pursuant to a commitment issued by the Superior Court in and for Los Angeles County, based on a conviction of grand theft; and while thus imprisoned he applied to the Superior Court in Marin County for and was granted a writ of habeas corpus. At the conclusion of the hearing the court made an order remanding petitioner to the custody of the sheriff of Los Angeles County; and from said order the state has taken this appeal.
[1] As grounds for the issuance of the writ petitioner alleged in his verified petition that the form of judgment embodied in the commitment was void for the following reasons: That neither the judgment nor the record concerning it showed that petitioner was present at the time of the pronouncement of judgment, or that the clerk of the court informed him of the nature of the charge, of his pleas thereto, or the verdict rendered thereon; and that he was not asked by the court or by anyone else whether he had any legal cause to show why the judgment should *263 not be pronounced against him. Furthermore, it was alleged as a fact that at no time prior to the pronouncement of judgment, nor at all, was he informed of the nature of the charge against him, of his pleas thereto, or the verdict thereon; nor was he at any time or at all asked if he had any legal cause to show why said judgment should not be pronounced.
In his return to the writ the warden set forth a copy of the commitment embodying the form of judgment; but petitioner did not file a traverse to the return, nor request that his petition be considered as a traverse thereto; nor did he offer any evidence, oral or documentary, in support of the allegations of the petition. It is held in the case of People v. Sherman,
Petitioner makes no attempt to differentiate the above case from the present one, nor to refute the contention made by the state as to the merits of the appeal. [2] It is argued, however, that the state is without a right of appeal from the order made by the trial court because under the terms of said order petitioner was "remanded to the custody of the Sheriff of Los Angeles County"; and upon that ground petitioner moves for a dismissal of the appeal. We are unable to sustain such view. As will be seen from the wording of section
Petitioner's claim that the state is without a right of appeal in this matter is evidently based largely on the mistaken belief that said section
The motion to dismiss the appeal is denied, and the order appealed from is reversed.
Tyler, P.J., and Cashin, J., concurred.
An application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 18, 1933.