In Re Acosta

DORAN, J.

—Petitioner had been found guilty of two separate offenses, to wit, assault, after a trial by jury in a criminal action wherein, by indictment, defendant was accused in several counts with the crime of murder and assault with a deadly weapon with intent to commit murder. Judgment of six months in the county jail was pronounced, in two counts, said judgments to run consecutively. While serving the sentence defendant escaped from the road camp. Later arrested and charged with escape, defendant was adjudged guilty. Application for probation followed and on the day appointed for disposing of said matter, to wit, May 13, 1943, the court made and entered the following order: “It is ordered that proceedings herein be suspended and the defendant is granted probation for a period of one year under the following conditions: Defendant must serve the first year of his probationary period in the County Jail with no good

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time allowed. This jail term as a condition of probation is ordered to run consecutively with the sentence which defendant is now serving in County Jail.”

It is petitioner’s contention that the period of probation expired in one year from May 13, 1943, after which time, it is argued, the court was without power to enforce any condition whatsoever, hence the imprisonment is illegal.

Respondent argues as follows: “The order of the trial court in placing petitioner on probation is not as clear and explicit as it should be, but considering all the facts and circumstances before the court at the time the order was made, it is obvious that the court intended to place the petitioner on probation for a period of one year; that as a condition of probation the petitioner serve one year in the County Jail; that the period of probation and imprisonment as a condition thereof was to commence at the expiration of the sentence he was then serving.”

There can be no question as to the clarity of respondent’s argument; nor can there be any question as to the clarity of the law. The power of the court with regard to probation is strictly statutory. Section 1203.1 of the Penal Code provides that “The court, judge or justice thereof, in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such