In Re Ryley

NOURSE, P. J.

Petitioner seeks his release on

habeas corpus

upon the grounds that he was tried under the provisions of section 1026 of the Penal Code, which section he claims to be unconstitutional.

Petitioner’s attack on the Penal Code section is made upon the same grounds which were urged in

Application of Boyd, ante,

p. 541 [291 Pac. 845], and for the reasons therein stated, we must hold that the attack is without merit.

In this proceeding the attorney-general has raised a point which was not briefed in the Boyd case, but which should be determined here as it goes directly to the right of petitioner to prosecute this proceeding. The point is that the questions raised by petitioner cannot be considered in

habeas corpus

because petitioner had his remedy on appeal from the judgment. The petitioner was convicted of the crime of murder in the first degree without recommendation and was sentenced to suffer the death penalty. He appealed from this judgment to the Supreme Court and the judgment was affirmed.

(People

v.

Gomez,

209 Cal. 296 [286 Pac. 998].)

In the early case of

Ex parte Max,

44 Cal. 579, 581, it was held that where the indictment is sufficient and the offense of which the defendant was convicted was within the scope of the indictment, and the judgment was one which the court had authority to make upon the appearance and plea of the defendant, the jurisdiction of the court was present and any inquiries directed to other conditions involved

[546]

were error which could not be reviewed on

habeas corpus.