2 P.2d 843 | Cal. Ct. App. | 1931
THE COURT.
An information was filed in the Superior Court of the City and County of San Francisco which charged one Leo Buckbee with the commission of a felony, to wit, burglary, and with a prior conviction of a felony in the state of Utah. Upon his arraignment in such cause Buckbee entered a plea of not guilty and denied having suffered a prior conviction. Subsequently on the day set for the trial, with the permission of the court, he withdrew the plea of not guilty and thereupon entered a plea of guilty of attempting to commit burglary, a felony. Thereafter, by stipulation by the district attorney, the court found the degree of burglary to be the second, and upon motion by the district attorney ordered the prior conviction to be dismissed. The court then pronounced judgment, sentencing *413 the defendant to imprisonment in the county jail of the city and county of San Francisco for a term of one year.
[1] It is claimed by the People, represented by the attorney-general, that the court was without authority to sentence a defendant convicted of an attempt to commit burglary of the second degree other than to imprisonment in the state prison, and that its judgment is therefore void.
The present proceeding, in which the People are the petitioners, is for a writ of mandate, directing the court to arraign the defendant for judgment and pronounce sentence according to law.
Section
Respondent claims that the word punishable as used in section
Under section
Webster's International Dictionary defines punishable as "deserving of or capable or liable to punishment . . . capable of being punished by law or right . . . said of persons or offenses". The word, as used in similar statutes where the same refer to the offender, has been held to mean liable to punishment or liable to be punished. (The Trasher, 173 Fed. 258; State
v. Paisley,
In State v. Paisley, supra, the court was considering the effect of a statute fixing the punishment in cases where the defendant had suffered a prior conviction. The statute read as follows: "Every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime after such conviction, is punishable therefor as follows: 1. If the offense of which such person is subsequently convicted is such that upon a first conviction the offender would be punishable by imprisonment in the state prison for any term exceeding five years, such person is punishable by imprisonment in the state prison not less than ten years. 2. If the subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the state prison for five years or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years." Defendant Paisley was convicted of the crime of robbery, the verdict also finding that the charge of a prior conviction of a felony was true, and he was *415 sentenced to imprisonment in the state prison for five years. The Montana statute provided that robbery should be punishable upon a first conviction by imprisonment in the state prison for a term not less than one year or more than twenty years. It was claimed that subdivision 1 of the statute, which we have quoted above, was only applicable to crimes the minimum punishment for which exceeded five years' imprisonment; and that since robbery might be punished by imprisonment for a term of one year the defendant could only be punished under the second subdivision of the act, which provided a maximum of ten years' imprisonment. The court in affirming the judgment, said: "As used in this section (subd. 1 of the act) we think it (`punishable') means liable to punishment. . . . In other words, we think this subdivision means that if the maximun punishment is more but not less than five years' imprisonment, then the punishment for the offense for which appellant was being tried . . . could not be less than ten years, and might be extended to life imprisonment."
The same construction was given subdivision 1 of section
We find no merit in the claim that this construction would result in greater punishments being inflicted for attempts than completed offenses, or that the trial court will be deprived of discretionary power in dealing with attempts, it being clear that where the trial court has discretion with respect to the punishment for completed offenses it will likewise have discretion with respect to attempts to commit such offenses.
No other matters require discussion; and in view of the above conclusion we are of the opinion that the trial court was without authority to sentence a defendant convicted of an attempt to commit burglary of the second degree to imprisonment in a place other than the state prison.
It is, therefore, ordered that a writ of mandate issue, directing respondent court to set aside the judgment entered in the action of the People of the State of California v. LeoBuckbee, number 2494 in the Superior Court of the State of California in and for the City and County of San Francisco, to arraign said defendant Leo Buckbee for judgment according to law, and to hear and determine such motions as may properly come before the court.