26 P.2d 315 | Cal. Ct. App. | 1933
On September 4, 1928, the defendant pleaded guilty to the crime of burglary, with which he was regularly charged and sentenced to imprisonment in the state prison at San Quentin. The record shows that at the time of passing sentence the court failed to designate whether the offense to which the defendant had pleaded guilty was burglary in the first or second degree. Thereafter, and in May, 1933, after hearing upon the appellant's petition for a writ of habeas corpus, this court remanded the appellant to the trial court in order that the degree of the offense to which the appellant had pleaded guilty should be ascertained and determined. (In re Stroff,
In pursuance of the order and direction of this court, the trial court of Humboldt County having brought the appellant before it, proceeded to take testimony to determine the degree of the offense to which the defendant had pleaded guilty, and thereupon found such offense to be burglary in the first degree. From this action of the trial court the defendant appeals.
Two grounds are relied upon for reversal — 1st: That the trial court had no jurisdiction to proceed to determine the degree of the offense to which the defendant had pleaded guilty, by reason of the fact that a judgment determining the degree of the offense was not pronounced within five days after the defendant had entered his plea of guilty; 2d: That the defendant was not armed at the time of the commission of the offense, and therefore was guilty only of burglary in the second degree.
The record shows a burglary during the night-time, of a certain store building in the county of Humboldt, and that the defendant owned a certain pistol or revolver which was found lying on the platform just outside of one of the doors leading into the store building. Whether that pistol was left on the platform before or after the entrance is not shown by the testimony.
[1] In support of his first contention the appellant refers to a number of cases holding that where the court has failed to pronounce judgment within five days after a plea or verdict of guilty, a new trial must be granted to the defendant as a matter of right. These cases, however, by *672 reason of the later decisions hereinafter referred to, can no longer be considered as authority. All of the cases cited by the appellant overlook the provisions of section 4 1/2 of article VI of the Constitution prohibiting the granting of a new trial for any error as to a matter of procedure unless such error had led to a miscarriage of justice.
Section
While section
That the earlier cases cited by the appellant are no longer controlling where the court fails to pronounce sentence within five days, is now clearly established. In People v. Zuvela,
The rule is likewise well established that where an irregular judgment has been pronounced, the proper procedure is to remand the cause to the trial court in order that proper correction may be made. (People v. O'Brien,
[2] Admitting the commission of the burglary, the appellant contends that the court was in error in finding the offense to be of the first degree, in that he was not armed with a deadly weapon. The building burglarized not being inhabited at the time, the provisions of section
A somewhat similar case was before the court in the case ofPeople v. Hall et al.,
Reference is also made in the testimony to a sawed-off shotgun, but this testimony is so indefinite that we do not base our decision thereon. There is nothing in the code provision which requires that the deadly weapon, or the weapon which may be used in offense or defense, must be held in the hand or hands of the person or persons committing the burglary. In this instance the appellant was certainly equipped with a deadly weapon. Webster defines "equip" and "equipped" as follows: "To furnish for service or against a need of exigency; to fit out; to supply with whatever is necessary to efficient action in any way; to provide with arms or armaments, stores, munitions, etc." If the appellant laid his revolver down on the outside of the building it does not exclude the conclusion that he was there armed, that is, equipped with a deadly weapon or instrument ready for use in case of emergency. The mere fact that some person more skilful than the appellant might have intercepted the use of the deadly weapon does not at all controvert the conclusion that the appellant was armed, that is, equipped with the means of offense and defense. To hold, under the circumstances disclosed in this case, that the appellant was unarmed would be to give precedence to a mere shadow rather than to substance.
The judgment and order are affirmed.
Pullen, P.J., and Thompson, J., concurred. *675