Albori v. Smith

STURTEVANT, J.

The petitioner applied to the Superior Court of the State of California, in and for the County of Marin, for a writ of

mandamus.

The trial court made findings in favor of the respondent. From the judgment denying the writ the petitioner has appealed.

The controversy involved the right of the petitioner to receive an order of release from the state prison located at San Quentin. That controversy arises by reason of certain disputes regarding the legality and effect of certain commitments and certain alleged

nunc pro tunc

orders amending the same. Heretofore the petitioner was indicted for the commission of two different assaults with intent to commit murder. One action was numbered 34,233, the other action was numbered 34,266 of the Superior Court of the State of California, in and for the County of Los Angeles. On September 18, 1928, said court caused a judgment to be entered in action number 34,233 as follows:

“Whereas the said Marco Albori, having been duly found guilty in this court of the crime of assault with a deadly weapon, a felony, it is therefore ordered, adjudged and decreed that the said Marco Albori be punished by imprisonment in the State Prison of the State of California at San Quentin for the term prescribed by law.

“The defendant was then remanded to the custody of-the sheriff of the county of Los Angeles.

“Done in open court this 13th day of September, 1928.

“Ten days stay of execution of sentence is granted.”

On the same day it caused a judgment in identically the same words to be entered in action number 34,266. On January 28, 1931, the trial court made an order in action number 34,233 as follows:

“It is ordered that the sentence in the above entitled action run concurrently with case No. 34,266.

“This order is made

nunc pro tunc

as of September 13, 1928.”

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