People v. Boling

RICHARDS, J.

This is an appeal from a judgment of conviction of the defendant of the crime of grand larceny, and an order denying him a new trial upon his demand there

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for, made under and by virtue of sections 1191 and 1202 of the Penal Code.

The verdict of the jury finding the defendant guilty of the offense charged was rendered on March 25,1 1916, and the court on that day made an order fixing March 28, 1916, as the time for pronouncing sentence. On the last-named day an order was made further continuing the time for sentence to April

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1916, on which day a motion for a new trial was made by the defendant and denied by the court, whereupon the defendant made an application to the court for probation, and the court extended the time for pronouncing judgment until April 20th in order to receive a report from the probation officer. On April 20th, at the request of the defendant, the court made an order continuing the time for pronouncing judgment until July 19, 1916, on which day the defendant moved the court for a new trial upon the ground that judgment had not been pronounced within the time limited by sections 1192 and 1202 of the Penal Code. Upon the hearing of said motion it appeared that these various extensions of time had resulted in continuing the time for pronouncing judgment of conviction for a period of 116 days after the day on which the verdict of the jury had been returned. The court denied the defendant’s motion for a new trial made upon that ground, and proceeded to pronounce the judgment from which this appeal is taken.

We are able to see no escape from the appellant’s contention that his motion for a new trial upon the last-named ground should have been granted in view of the terms of sections 1191 and 1202 of the Penal Code, and the construction which the supreme and appellate courts have placed thereon.

Section 1191 of the Penal Code reads as follows:

“After a plea or verdict of guilty, or after a verdict against the defendant on a plea of former conviction or acquittal, or once in jeopardy, the court must appoint a time for pronouncing judgment which must not be less than two, nor more than five days after the verdict or plea of guilty; provided, however, that the court may extend the time not more than ten days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment; and provided, further," that the court may extend the time not more than twenty days in any case where the question of pro