In Re Hudspeth

California Court of Appeal Sep 3, 1929 No. Docket No. 1880.Published

Before: Conrey

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Holding. The court held that a defendant's time spent in custody pending an appeal of a misdemeanor conviction does not count toward the service of the sentence, as the appeal suspends the judgment and renders it unenforceable during that period.

Issues

Does time spent in custody pending an appeal of a misdemeanor conviction count toward the service of the sentence?
Does an appeal of a misdemeanor conviction operate as a suspension of the judgment of the lower court?

Disposition. remanded to custody

Quotations verified verbatim against the opinion

“an appeal from judgment of a justice’s court operated as a suspension of the judgment of the lower court for all purposes”

“while the appeal is pending, the judgment is not enforceable against the defendant.”

“The prisoner is remanded to custody.”

CONREY, P. J.

On petition of the applicant a writ of

habeas corpus

was issued and served. Return was duly made and the matter is submitted for decision.

In the Municipal Court of the city of Los Angeles petitioner was convicted on a misdemeanor charge and on Janu

[479]

ary 18, 1929, was sentenced to a term of seven months in the city jail. Immediately he gave notice of appeal and the court ordered that he be admitted to bail in the sum of two thousand five hundred dollars. No undertaking of bail was filed, and the defendant remained in custody during the pendency of the appeal and has continuonsly been in custody of the chief of police and in the city jail since the eighteenth day of January. The judgment was affirmed and a certified copy of the order of affirmance having been filed in the Municipal Court, a commitment was issued and delivered to the chief of police on the eleventh day of March, 1929. This was in accordance with section 1470 of the Penal Code, except that the commitment went to the chief of police and not to the sheriff.

Petitioner claims that he has been imprisoned under the judgment since the eighteenth day of January, and that, therefore, his term of seven months’ imprisonment has been completed. Respondent contends that said seven months’ term did not begin until the commitment was issued as above stated. If the period of time while the appeal was pending is to be computed as part of the time of sentence served, the petitioner is entitled to his liberty; otherwise, he should be remanded to custody. It was the rule at common law that a writ of error operated by its own inherent force as a

supersedeas

of all proceedings on the judgment. (3 Cor. Jur., p. 1272.) The common law is in force as law in this state in the absence of statutory provisions at variance with the common law. There does not appear to be any statutory provision in this state, either in the Penal Code or elsewhere, changing the common-law rule as to the effect of an appeal or writ of error upon the right of enforcement of a judgment of a justice’s court or municipal court in a misdemeanor case. Accordingly it was held in

In Re Hudspeth

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CONREY, P. J.

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