Wyman v. Municipal Court

DOOLING, J.

On March 10, 1949 Burt Wyman was adjudged guilty of battery in the municipal court. He was placed on probation on condition that he make restitution to the injured party. More than 90 days after the order granting probation was made proceedings were instituted to revoke his probation on the ground that he had failed to comply with its terms. Wyman petitioned the superior court for a writ of prohibition and from a judgment granting the writ respondent prosecutes this appeal.

[740]

The question presented on the merits is whether Wyman was placed on probation for the period of

90

days or for a period unspecified. The only evidence introduced on the hearing before the superior court was the clerk’s rough minutes and the permanent minutes of the municipal court.

The rough minutes in the column headed “Judgment” contain the longhand entry:

“90

days Co. Jail S.S. Def’t placed on Prob.

on

condition he make restitution.”

In the same column in the permanent minutes there is a rubber stamp entry supplemented by handwriting, the handwritten portion being designated by italics herein :

“The court orders the defendant to be imprisoned in the county jail for the period of_days. S.S. on probation of

90 da”

“To make full restitution.”

In the adjoining column again appears the handwritten entry “90 da” with an arrow pointing to the entry last quoted. (It is agreed that “S.S.” in both entries means “sentence suspended.”)

There was produced in the trial court no evidence of any action taken in the municipal court to correct in any manner the entry of the court’s order as it appears in the permanent minutes nor any evidence that this entry does not correctly embody the order actually made by the judge.