Ex Parte Monckros Von Vetsera

California Court of Appeal Dec 19, 1907 No. Crim. No. 117.Published

Before: Hall

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Holding. A court retains plenary power to revise or vacate an oral order that has not been reduced to writing or entered into the court's minutes. Consequently, an oral announcement of a prisoner's discharge that was never formally recorded does not constitute a final, binding judgment.

Issues

Whether an oral order for a prisoner's discharge that was never entered in the court's minutes constitutes a final, binding judgment.
Whether a court retains jurisdiction to vacate an oral order that has not been reduced to writing or entered into the record.

Disposition. remanded

Quotations verified verbatim against the opinion

“Until the judgment had been entered in the minutes of the court, or had been in some authentic manner reduced to writing, as by the judge signing a written order, it must be held that the judgment lay in the breast of the judge”

“A judgment must be reduced to writing, and cannot exist in the memory of the officers of the court.”

“In the case at bar the order relied on by petitioner for his discharge, never having been entered in the minutes of the court, was subject to be vacated and revised by the court”

Synopsis

WRIT OP HABEAS CORPUS to the warden of the State Prison at San Quentin.

The facts are stated in the opinion of the court.

HALL, J.

Petitioner is in the custody of the warden of the state prison at San Quentin.

From the return to the writ it appears that he was delivered into the custody of the warden of said state prison in execution of two judgments rendered by the superior court of the county of Alameda, May 31, 1900, the term of imprisonment prescribed in each judgment being fourteen years, and the term in the second one to commence upon the expiration of the term of the first, it being recited that defendant had been convicted upon both charges before judgment was rendered upon either. The only possible criticism of the form of the judgments is that it is recited in each that defendant was convicted of a “felony,” the particular

[137]

felony not being designated. That this form of judgment is sufficient to withstand an attack upon

habeas corpus

does not admit of discussion.

(Ex parte Gibson,

31 Cal. 620, [91 Am. Dec. 546] ;

Ex parte Murray,

43 Cal. 455 ;

People

Kelly,

120 Cal. 271, [52 Pac. 587].)

It results that the prisoner must be remanded unless he is now entitled to be discharged by virtue of certain proceedings had in and before the superior court of Marin county.

It appears that the petitioner made application, by petition addressed to and filed in said superior court, for a writ of

habeas corpus.

The court ordered the writ to issue, and in obedience to such writ the warden produced the prisoner before the court on the fourth day of October, 1907, with his return to the writ, setting up that he held him by virtue of the two judgments hereinbefore referred to. The hearing was continued by said court to October 15, 1907, and the presence of the prisoner waived. On the fifteenth day of October, 1907, the court heard the matter, and the judge of the court, in open court, announced that the petitioner was illegally detained by said warden, and ordered that he be discharged from the custody of said' warden. No written order for his discharge was made or signed by the judge, and no entry of such order was made in the minutes of the court or in any manner save that the clerk made a memorandum thereof in pencil in a book, manifestly kept by him as a personal memorandum-book in aid of his memory in subsequently making entries in the minutes of the court. The book bore no title, label or other indicia of official character. The entry concerning the order announced by the judge of the court is in pencil, several words are represented by abbreviations, and the whole is manifestly a personal memorandum of the clerk to be used to aid his memory when he should enter the order in the minutes of the court.

Ex Parte Monckros Von Vetsera

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Synopsis

HALL, J.

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