People v. Tipton

California Court of Appeal Feb 11, 1949 No. Crim. 2100Published

Before: Adams

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Holding. The court held that a defendant adjudicated as a sexual psychopath is not legally insane, and that the trial court properly denied motions to vacate a judgment and to file a late notice of appeal.

Issues

Whether a defendant adjudicated as a sexual psychopath must be restored to sanity before sentencing.
Whether a defendant waives irregularities in grand jury impanelment by failing to demur or move to set aside the indictment.
Whether a trial court has authority to allow a notice of appeal filed two years after judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“One who is declared to be a sexual psychopath is not thereby adjudged to be insane”

“where an indictment appears regular on its face and a defendant fails to demur or move to set it aside, he waives any irregularities”

“The requirements for the filing of notices of appeal are mandatory and jurisdictional”

ADAMS, P. J.

On January 26, 1944, an indictment was filed against appellant charging four separate violations of section 288a of the Penal Code. He entered pleas of not guilty, and not guilty by reason of insanity. On March 22,

[104]

1944, a trial jury convicted him of the offenses charged, but disagreed on the issue of insanity.

A petition was then filed by appellant’s sister alleging that defendant was a sexual psychopath. After hearing thereon he was so adjudged and committed to the Mendocino State Hospital for treatment. On February 4, 1946, the superintendent of said hospital advised the trial court that defendant had not recovered from his sexual psychopathy but that he would not benefit by further treatment. Defendant was thereupon returned to the trial court for further proceedings in his case.

He then withdrew his plea of not guilty by reason of insanity and applied for probation. It was denied, and he was sentenced to imprisonment in the state prison for the term provided by law, the judgment being dated May 13, 1946.

During all of the foregoing proceedings defendant was represented by counsel of his own choosing. No appeal was taken from said judgment and no motion for a new trial made.

On or about July 26, 1948, the present counsel for Tipton filed in the trial court a motion to set aside, vacate and annul the prior judgment, and a motion for an order allowing him to file a notice of appeal from the judgment. Both motions were denied and this appeal followed.

The first motion was based upon a contention that the grand jury which indicted Tipton was illegal. The motion was rightfully denied. See

People

Dale,

79 Cal.App.2d 370, 375 [179 P.2d 870],

People

Meraviglia,

73 Cal.App. 402, 407 [238 P. 794],

People v. Tipton

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ADAMS, P. J.

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