183 P. 845 | Cal. Ct. App. | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *413 On the 16th of October, 1914, defendant, having been convicted by a jury of the crime of "lewd and lascivious conduct with and upon the body of a male child under the age of fourteen years," was sentenced by the superior court of the county of Sacramento to imprisonment in the state prison for the term of fifteen years. *414
On the twenty-first day of January, 1919, defendant made a motion "that an order be made and entered herein vacating and setting aside the conviction and judgment for want of jurisdiction in said court." An order to show cause was issued and, after a hearing, the motion was by the court denied and the defendant remanded to the custody of the warden of the state prison. The appeal is by the defendant from the order denying said motion.
It is stated in the grounds of appeal that said order is "contrary to law and that said conviction and judgment are void on the face of the record, for want of jurisdiction in said superior court over the subject matter of the action and that said judgment in said action is also void because in excess of the authority of said superior court to the extent that the sentence therein specified exceeds the term of five years."
Defendant was tried and convicted under the provisions of section
Appellant urges the following points as grounds for reversal of said order: That said section
Most, if indeed, not all, of the objections to section
[1] 1. It has been so often held in this state that it is no longer an open question that the validity of a statute, which had been duly certified, enrolled and approved, and deposited in the office of the Secretary of State, cannot be impeached by a resort to the journals of the legislature, or by extrinsic evidence of any character. (Sherman v. Story,
[2] This point requires no further consideration herein than such as is involved in the citation of these cases.
[3] 2. The title to section
[5] 3. Section
[7] 4. There is not imparted to section
Counsel for the defendant contends, however, that the *421
rules of statutory construction which are applied in the Bradford case have application to statutes regulating or defining civil rights and not to penal statutes or legislative acts defining crimes and fixing their penalties, referring to sections 388, 411, 498, 521, and 524 of Sutherland on Statutory Construction, second edition and the case of Ex parte McNulty,
[9] 5. There is no merit, so far as the record before us shows, in the point that the "judgment and verdict do not show a violation of section
[11] 6. There is absolutely no ground for the contention that section
[12] 7. The final point urged by appellant is that the court was without jurisdiction to inflict a greater punishment for the violation of section
The penalty fixed by section
We have now as fully as we have conceived necessary noticed all the general points made by the appellant. We have not discussed the points, though, from all the angles *426 of the argument advanced in support of the appeal or strictly followed the varying ramifications thereof. We have satisfied ourselves, however, that there is no substantial merit in any of the points presented, although they have been ingeniously and with as much force as untenable legal problems may be supported pressed upon us in the brief.
The order appealed from is affirmed.
Chipman, P. J., and Burnett, J. concurred.