281 P. 700 | Cal. Ct. App. | 1929
Two informations, both of them charging the offense of violating the State Poison Act (Stats. 1907, p. 124), were filed against the defendant. One of them alleged the crime to have been committed on March 24, 1929, and the other on March 25th. The cases were consolidated and he was found guilty of both offenses. This was on May 20, 1929. Time for sentence was fixed by the court for May 23d. On this latter day the court denied defendant's motion for a new trial and at the same time permitted the district attorney to file two amended and supplemental informations charging the defendant with a prior conviction, in the District Court of the United States, of the offense of violating the Harrison Narcotic Act (26 U.S.C.A., secs. 211, 691-707), and Jones-Miller Act (21 U.S.C.A., secs. 171-177, 180, 182, 184, 185). Upon the denial by the defendant of the prior conviction the trial judge refused to pronounce sentence; set the trial upon the issues presented by the supplemental informations for May 31st, and continued the time for sentence to the same date. *378
Just before the defendant denied the prior conviction his counsel moved for a new trial on the ground that the filing of the supplemental informations necessitated a retrial of the entire action. He also made a motion to dismiss the supplemental informations on the ground that they came too late and for the further reason that section
The first and most insistent claim of appellant is that the trial court was bound to grant him a new trial when it failed to sentence him within the five day period provided by section
"Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted, either in this state or elsewhere, said indictment or information shall be forthwith amended to charge such prior conviction or convictions, and such amendment may and shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary. Defendant shall promptly be re-arraigned on such information or indictment as amended and be required to plead thereto. Whenever after sentence, and before the sentence has expired, it shall be discovered that the indictment or information on which defendant was convicted did not charge all felonies of which defendant had theretofore been convicted, either in this state or elsewhere, it shall be the duty of the district attorney of the county wherein defendant was sentenced to cause to be filed a supplemental information setting up such prior conviction or convictions. Said supplemental information may be filed either in the county from which defendant was sentenced or in the county in which he is then confined. Defendant shall thereupon be arraigned upon such supplemental information and be required to plead thereto. In whichever county the supplemental information is filed, the district attorney of the county from which defendant was sentenced shall sign the same and prosecute the proceedings. If defendant admit the prior conviction or convictions charged, the court shall resentence him to the sentence which would have been legal if such prior conviction or convictions had been admitted at the time of defendant's conviction, *380 and such resentence shall operate as of the date of the original sentence. If defendant deny the prior conviction or convictions so charged, the issue shall be tried by a jury, or by the court if a jury be waived. If the issue be found in defendant's favor, such supplemental information shall be dismissed. If the issue be found against defendant, the court shall resentence defendant to the sentence which would have been legal if such prior conviction or convictions had been admitted at the time of defendant's conviction, and such resentence shall operate as of the date of the original sentence." (Italics ours.)
[1] Obviously the legislature intended, as is manifest from a reading of the statute, that an amended or supplemental information might be filed at any time prior to the expiration of the sentence of the convict. Undoubtedly the requirements of section
[3] In addition to what has already been said upon the subject we may add that the law is now well settled that the failure to impose sentence within the statutory period is an error of procedure only, not requiring a reversal of the order denying the motion for a new trial where it does not result in a miscarriage of justice. (People v. Zuvela, *381
[4] Counsel also asserts that section
The next attack of appellant is to the effect that the prior conviction must be alleged in the information or indictment, *382
and cannot be added by the supplemental pleading. This is but a restatement of the former argument that the section under discussion is unconstitutional, because there can be no doubt that it authorizes the procedure here employed and made use of also in the case of People v. Wilson,
The remaining points deal solely with the sufficiency of the evidence. It was sufficient in all respects to support the jury in its deductions and, of course, we are bound thereby.
Judgments and orders affirmed.
Works, P.J., and Craig., J., concurred.