People v. Lauman

LAWLOR, J., Dissenting.

I dissent.

I agree with the contention of the attorney-general that sections 1191 and 1202 of the Penal Code, as amended in 1909, have no application so far as the time within which judgment must be rendered after the reversal of an order arresting judgment is concerned. It is true that the purpose of the amendment is to secure expedition in the disposal of cases and that the conclusion announced by the

[148]

district court of appeal would tend to expedite proceedings after reversal, but as the provisions refer specifically to the remedies and the sequence of and the time within which they may be availed of after plea or verdict of guilty and no reference is made to proceedings after reversal, I think there is no statutory warrant for the construction given to the amended provisions.

The remedies provided in section 1191 which have any pertinency here are the motions for a new trial and arrest of judgment, which must be decided within fifteen days after plea or verdict, and an application for probation for the determination of which the court is allowed twenty additional days, and, on motion of defendant, this may be extended to ninety days.

In this ease the first two of the remedies were exhausted. The defendant was still entitled to apply for probation. It is for this reason the order of reversal in the first appeal did not direct the superior court to proceed to judgment but remanded the cause for further proceedings in contemplation of sections 1191 and 1202.

But even if the time schedule prescribed in the statute does not apply after reversal of an order arresting judgment, the decision of the district court of appeal is based on an erroneous theory. It is because of the confusion to which this case may hereafter give rise that I deem it advisable to state my views on the subject.

It appears from the record on the original appeal that the verdict was rendered on November 25, 1919. On that day the case was set down for November 28th for judgment and sentence. When the case came up on November 28th defendant interposed his motions for a new trial and in arrest of judgment. The case was thereupon continued to December 1st, then to December 5th, and finally to December 6th, each time for the hearing of said motions and for judgment and sentence. On the latter date the motion for a new trial was denied and the motion in arrest of judgment granted.