In Re Hammond

California Court of Appeal Dec 10, 1937 No. Crim. 1596Published

Before: Plummer

AI Brief

AI-generated · verify before citing

Holding. A judgment that fails to determine the degree of a crime as required by Penal Code section 1192 is defective but not void, necessitating a remand to the trial court to fix the degree and pronounce a proper sentence.

Issues

Whether a judgment failing to determine the degree of a crime as required by Penal Code section 1192 is void and entitles the petitioner to discharge.
Whether the trial court must determine the degree of an offense prior to pronouncing sentence when a defendant pleads guilty to a crime divided into degrees.

Disposition. remanded

Quotations verified verbatim against the opinion

“The judgment, however, is not void, and the petitioner is not entitled to a discharge.”

“there must be such a determination regardless of the character or nature of the evidence by which the fact is ascertained.”

[19]

PLUMMER, J.

The application of the above-named petitioner for a writ of

habeas corpus

has been heard and the cause submitted for our consideration. The petition shows that on or about the 7th day of May, 1917, an information was filed in the Superior Court of Fresno County, charging that the petitioner and one other did, on or about the 30th day of March, 1917, in the county of Fresno, state of California, wilfully, unlawfully, feloniously and with premeditation and malice aforethought, kill and murder Faustin Lassare, a human being.

Upon being arraigned the petitioner, in the first instance, entered a plea of not guilty, but on or about the 7th day of June, 1917, thereafter withdrew his plea of not guilty, and entered a plea of guilty, whereupon sentence was thereupon pronouncing upon the petitioner, ordering and decreeing that the petitioner be confined in the state prison at Folsom for the period of his natural life. While the facts of the case appear to have been presented to the court by a statement of the district attorney, the court made no determination of the degree of the offense as required by section 1192 of the Penal Code.

The petitioner prays that he be discharged by reason of the failure of the court to take the proceedings specified in section 1192,

supra.

There is no question but that the judgment fails to disclose the degree of the crime. The judgment, however, is not void, and the petitioner is not entitled to a discharge.

A like question has been before the court in a number of cases which we will hereafter simply cite without making extended quotations therefrom. A number of the cases discuss the question as to what shall be expressed in a judgment where a crime committed by a defendant is divisible into degrees. Our conclusions arrived at from a study of the several eases in that the judgment need only indicate that the court has fixed the degree of the crime prior to the pronouncing of judgment, and no particular or formal language is required.

In the case of

In Re Hammond

AI Brief

PLUMMER, J.

More from California Court of Appeal

Related research

AI Brief