140 Cal. App. 7 | Cal. Ct. App. | 1934
By information filed against him, defendant was accused in each of two separate counts of an information of the commission by him of the crime of burglary. In the same information, it was charged fhat prior to the commission of either of such offenses defendant had suffered two separate convictions of the crime of burglary ; which fact, on his arraignment for plea, defendant admitted. Following his conviction on each of the counts of burglary of which he was accused in the instant action, defendant was sentenced as a habitual criminal. After he had been incarcerated in the state prison for a period of more than five years, and while still so imprisoned, he caused to be presented to the superior court a motion by which, in part, he sought to have the minutes of such court corrected so as to show, what he asserted was the fact, to wit, that at the time of his arraignment for sentence for conviction of the two crimes of burglary of which he had been convicted in said court, he was not asked either by the court, or by the clerk, as required by the provisions of section 1200 of the Penal
Waiving any and all objections which properly may or might be raised respecting the right of defendant to be heard on appeal from the order in question, but considering the suggested error on its merits,—it appears that in the case of People v. Walker, 132 Cal. 137 [64 Pac. 133], it was held that the provision of section 1200 of the Penal Code, to which attention just has been directed, is mandatory, and that “a substantial compliance therewith is essential, for they affect important rights of the defendant, who, when thus called upon, may show either that he is insane or that there are grounds for a new trial, or for arrest of judgment”.
It therefore is indicated by judicial determination that the “legal cause”, if any, which defendant might have urged “why judgment should not be pronounced against him” consisted in his making a showing either that he was then insane, that proper grounds existed why he should be awarded a new trial, or for arrest of judgment.
An inspection of the record of the proceedings had at the time when defendant was arraigned for judgment shows that prior to the rendition of such judgment defendant made “a motion for a new trial on the usual statutory ground”; which motion was thereupon submitted to the court without argument thereon by either of respective counsel, and thereupon was by the court denied.
By the provisions of section 1185 of the Penal Code a motion in arrest of judgment is defined, and the grounds
But in addition to the grounds stated in section 1185 of the Penal Code, by the provisions of section 1201 of the same code, as a cause that “may be shown against judgment”, on his arraignment for sentence, defendant is entitled to show “that he is insane”. However, in his brief herein appellant makes no such claim. In that connection, the record herein shows that immediately preceding the time when defendant was so arraigned, in addition to the motion made by him for a new trial,—on the ground that the verdict of the jury “was not substantiated by the evidence or the law”, defendant made a motion “to vacate the judgment”. Although it is thus disclosed that defendant made each of the motions to which reference hereinbefore has been had, in his brief herein he says: “But one motion was made. There remained motions for a new trial, and motion in arrest of judgment.” But aside from such condition, it is apparent that on a proper presentation of the motion which is the subject of this appeal, had defendant relied upon the possible fact that he was insane at the time when he was arraigned for sentence, he would have been required not only to specify such ground as a foundation for his motion, but also that he furnish evidence of that fact. Since he failed in that regard and does not now urge it as a reason that he either could or would have assigned such cause in arrest of judgment, he neither was at that time, nor is now, injured because he was not afforded an opportunity in that regard. It is well established in the law of appellate procedure that before an order or a judgment of the lower court will be reversed, the appellant must show not only that error was committed, but as well that because of such error the appellant has suffered in a denial of some substantial right which the law guarantees to him.
In the ease of People v. Wademan, 38 Cal. App. 116 [175 Pac. 791], the case of People v. Walker, supra, was dis
Although not entitled to raise the question on this appeal (People v. Van Buren, 134 Cal. App. 206 [25 Pac. (2d) 32]), in substance appellant complains that because the information by which he was charged with “prior convictions” contained no allegation that he had “served a term therefor in any state prison” (sec. 644, Pen. Code), the trial court committed error in adjudging him a habitual criminal. But in addition to the lack of right in appellant to have such question determined in the instant appeal, a sufficient answer to such contention is that at the time when judgment was pronounced against defendant the requirement that before he could be adjudged a habitual criminal it must be shown that he had “served a term in any state prison”, was not a provision of the statute.
The order from which the appeal is taken is affirmed.
Conrey, P. J., and York, J., concurred.
