People v. De Moss

[613]

WASTE, C. J.

The defendant De Moss was convicted of the crime of murder of the first degree, and the death penalty was imposed. On appeal, the judgment and order denying a, motion for new trial were affirmed.

(People

v.

De Moss,

4 Cal. (2d) 469 [50 Pac. (2d) 1031].) Subsequent to the going down of the

remittitur,

the trial court, in the absence of the defendant, proceeded to reimpose sentence upon the defendant, and pursuant to the provisions of section 1193 of the Penal Code, as amended in 1935 (Stats. 1935, p. 1867), appointed January 3, 1936, as the date on which the judgment should be executed. This date was not less than thirty days nor more than forty-five days from the date of the order.

Subsequently, on January 24, 1936, the trial court, again in the absence of the defendant, made an order fixing April 3, 1936, as the date for the execution of the defendant. From each of these orders the defendant has appealed, and the attorney-general now moves to dismiss each of the appeals.

In support of his appeal from the order of December 2, 1935 (fixing January 3, 1936, as the date of execution), the appellant relies upon the contention that the order was void because made in the absence of the defendant; and on the further ground that, as to him, section 1193, as amended in 1935, was

ex post facto,

having been enacted after the date of the crime of which he was convicted.

At the time of the commission of the crime, October 14, 1934, Penal Code, section 1193, provided that upon receipt of the

remittitur

of the reviewing court, the trial court should forthwith make and cause to be entered a new order, pronouncing sentence anew against defendant, and appointing a day upon which the judgment should be executed,