People v. Haines

LANGDON, P. J.

This is an appeal by the defendant from a judgment of conviction of the crime of rape. Objection is strongly urged against the ruling of the trial court in denying defendant’s motion for a new trial. Defendant urged his motion for a new trial upon the ground that judgment had not been pronounced within the time provided by section 1191 and, therefore, he was entitled to a new trial under the provisions of section 1202 of the Penal Code.

The verdict of the jury was rendered on March 24th; sentence was continued until March 28th. At that time notice of motion for new trial was given and the court continued the matter until April 6th, the period allowed by statute. Upon April 6th the matter came up for hearing and after argument by counsel was continued until April 7th. Upon this last-named date the matter was referred to the probation officer for his report and continued until April 20th. At the request of the defendant, continuances were had to May 4th, May 25th, June 8th, June 22d, July

[630]

6th, July 13th, July 20th, upon which latter date defendant’s request for probation was denied and sentence was pronounced. This was 118 days after the date of the verdict, and three days later than the maximum time allowed by section 1191 within which sentence should have been pronounced. It is urged that because of this delay the defendant was entitled to a new trial and that the judgment should be reversed. This contention is met by the recent case of

People

v.

Zuvela,

191 Cal. 223 [215 Pac. 907], wherein it was held that the failure to impose sentence within the time specified by section 1191 of the Penal Code is clearly an error of procedure within the meaning of section 4% of article VI of the constitution and that a new trial would not be granted because of such error unless an examination of the entire record disclosed that the error complained of had resulted in a miscarriage of justice.

As pointed out by the respondent, the error complained of occurred after the verdict of the jury and could not have changed the verdict in any way. The verdict is supported by substantial evidence in the record. If the testimony of the prosecutrix was believed, and there is nothing about it to arouse the suspicion of falsity, the defendant was guilty as charged. The trial court passed upon the credibility of the prosecuting witness in denying the motion for a new trial and that matter is not subject to our review.