Lesser v. Collins

NOURSE, P. J.

This is an appeal from a peremptory writ of mandate issued by the superior court in the city and county of San Francisco commanding defendant to register petitioner as a qualified elector. Registration was denied on the ground that it appeared from the judgment roll of a criminal proceeding in Alameda County that the petitioner had been convicted , of an infamous crime and therefore was ineligible to register because of the provisions of section 1, article II, of the Constitution. In granting the writ of mandate the trial court found that the judgment of conviction was void on its face.

In support of the judgment the learned trial judge prepared and filed a written opinion which fully covers the main issue raised on this appeal, the pertinent portions of which we adopt as the opinion of this court:

“The petitioner, Harry Lesser, is a male person over the age of twenty-one years, and is a natural born citizen of the United States of America, being born at Oakland, California, June 29th, 1881, and has never renounced his allegiance to the United States.

“On March 5th, 1930, Lesser was indicted by the Grand Jury of the County of Alameda with A. A. Horwege and James Austin for conspiracy in three counts as follows:

“Count 1. ‘The Grand Jury of the County of Alameda hereby accuses Harry Lesser, A. A. Horwege and James Austin of a felony, to-wit: a violation of subdivision 1 of Section 182 of the Penal Code of the State of California, to-wit: conspiracy to commit bribery.’

“Count 2. ‘and the said defendants Harry Lesser, A. A. Horwege and James Austin are further accused by the Grand Jury of the County of Alameda of a felony, to-wit: a violation of subdivision 1 of Section 182 of the Penal Code of the State of California, to-wit: conspiracy to violate Section 176 of the Penal Code of the State of California’.

[163]

“Count 3. ‘and the said defendants, Harry Lesser, A. A. Horwege and James Austin, are further accused by the Grand Jury of the County of Alameda, of a felony, to-wit: bribery, a violation of Section 67 of the Penal Code of the State of California’..

“On June 19th, 1930, a jury in the Superior Court, theretofore impaneled, convicted Lesser on all three counts in the indictment. However, thereafter, on June 24th, 1930, the judge of the trial court, Hon. Fred Y. Wood, Superior Judge, granted a motion in arrest of judgment as to the convictions in counts one and three of the indictment.