31 P.2d 204 | Cal. Ct. App. | 1934
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This is an appeal, under the provisions of section
The defendant was charged by an information filed pursuant to section
The defendant appears in proper person, and contends that the court was without jurisdiction to pronounce the second sentence or amend the original commitment, that the court was without authority to find "that the crime of attempted burglary in the first degree was committed in the night time", for the reason that the jury did not find that the crime was committed "in the night time"; that the amended commitment is void for the reason that it purports to increase the term of sentence beyond the term provided by law pursuant to the original commitment; that the verdict and judgment are uncertain and void for failure to find that the defendant was unarmed at the time of the commission of the offense, and because the judgment results in a miscarriage of justice.
[1] The effort to appeal from a purported motion for new trial in the present case is ineffectual. A motion for new trial must be made before judgment. (Sec. 1182, Pen. Code.) It may be made only upon the grounds enumerated in section
[2] The amended judgment contained all the necessary findings of the court, including the declaration that the defendant had been previously convicted, and was guilty of "an attempted burglary of the first degree", and that he had pleaded guilty to the charge of "prior conviction of another felony". The defendant neither then nor at any other time made a motion for a new trial upon the merits of the case. No appeal from the original judgment was taken. That judgment was not void. The right of the defendant to move for a new trial was therefore waived. There is nothing in the transcript on appeal in this case to show that the defendant ever actually made a motion for new trial. All that does appear is the clerk's recital of proceedings which occurred in the superior court on December *530 20, 1933, at the time the commitment was amended, which shows that the court then again formally pronounced judgment, and merely added to its former declaration of the guilt of the defendant of attempted burglary of the first degree, and of the former conviction of highway robbery, that it also appeared at the trial from the admission of the defendant on the witness-stand, that he had actually served a term in the state prison upon the charge of former conviction of a felony, and that he was not armed with a deadly weapon. After the court had formally made these findings of facts, the defendant orally moved for an order "annulling, vacating and setting aside the judgment" on the ground that it was "indefinite, vague and uncertain and therefore void on its face". This was not a motion for new trial. It was too late to move for a new trial. The defendant waived his right to a new trial by failing to make the motion therefor before the rendering of judgment. The court had no authority to then consider a motion for new trial. There is, therefore, no merit in defendant's claim that a new trial should have been granted.
[3] The original judgment was not void. In pronouncing judgment the court specifically determined that the defendant had been found guilty of "attempted burglary of the first degree", and of a prior conviction of highway robbery, declaring that he had pleaded "guilty to said prior charge". The certificate of commitment which was issued pursuant to the pronouncing of judgment was defective in failing to mention the prior conviction of felony. We know of no reason why a defective commitment, which contains an inadvertent omission to state that the defendant had actually served time in a penal institution in punishment for a prior conviction of a felony, may not be corrected by the court without the formality of a subsequent hearing in open court, provided the necessary evidence upon which the amendment is made, was formally adduced at the trial of the case. Certainly the court had jurisdiction to supply such an omission in a commitment, at a formal hearing at which the defendant is present, after receiving notice and appearing with the right to be represented by counsel.
It has been frequently held that even when the court has failed to ascertain the degree of the crime of which an accused has been convicted, the case may be properly remanded *531
with direction for the court to ascertain and fix the degree and to amend the judgment to conform thereto. (People v.Paraskevopolis,
[4] While it is necessary to include in the judgment the degree of the crime of which one has been convicted, and it is proper to insert in the commitment the facts upon which the court ascertains and fixes the degree of the crime, as well as the finding with regard to the defendant's possession of a weapon, it is, however, not necessary to the validity of the commitment that either the facts upon which the degree of the crime depends, or the finding with regard to the possession of a weapon, be included therein. These last-mentioned facts are merely evidentiary. The statute requires the court to ascertain and report these facts to the prison directors for the purpose of furnishing the board with information upon which it will be enabled to fix the maximum and minimum penalty of law, pursuant to the requirements of section
"Before judgment is pronounced upon any person convicted of an offense punishable by imprisonment in the state prison, it shall be the duty of the court . . . to ascertain in a summary manner, and by such evidence as is obtainable, . . . facts . . . calculated to be of assistance to the court in determining the proper punishment of such person, or to the state board ofprison directors in the performance of the duties imposed upon it by law.
. . . . . . . . . . . . .
"Within thirty days after judgment has been pronounced by the court, one copy of such transcript . . . shall be sent by mail . . . to the warden of the prison to which such convicted person shall have been sentenced."
[5] It was harmless in the present case that the court included in the original commitment a finding that the defendant *532 entered the building "in the night time" with the intention of committing burglary. Nor was it necessary for the jury to include in its verdict a statement of the facts upon which it determined that the defendant was guilty of "attempted burglary in the first degree". It was sufficient that the jury found the degree of the crime of which he was convicted.
[6] The information is not void with relation to the charge of a prior conviction because it fails to allege that the defendant actually served time therefor in a penal institution, although it has been said it is better practice in charging a prior conviction to allege the actual service of time. (In reBoatwright,
[7] There is no merit in the defendant's contention that the doctrine of once in jeopardy may be applied to the proceedings upon which the commitment was amended in the present case. Those proceedings did not constitute a trial. No evidence was adduced at that time. Moreover, no such plea was then made. The defense of once in jeopardy is not available under a general plea of not guilty, but must be raised by special plea only. (7 Cal. Jur. 995, sec. 132; People v. Rogers,
[8] Finally the defendant contends there is no evidence of his intention to commit larceny as a motive for entering the building, and that his conviction results in a miscarriage of justice. This is not an appeal upon the merits of the cause. The evidence which was adduced at the trial is not before us. We must therefore assume there is ample evidence to support the implied finding of the jury that he entered the building with intent to commit larceny, and that every other necessary element to complete the crime was also adequately proved. It follows that we must assume the record affirmatively shows that the defendant's conviction was not the result of a miscarriage of justice.
The judgment and the order are affirmed.
Pullen, P.J., and Plummer, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 7, 1934, and an application *533 by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 20, 1934.