People v. Conley

THE COURT.

This is an appeal from a judgment in' which the defendant was sentenced to imprisonment in the state prison for a term of four years after conviction of the crime of pimping.

[363]

The record shows that the verdict finding the defendant guilty was rendered on February 10, 1914, and that the cause was continued for judgment until February 24th; and that thereupon, a petition for probation being interposed, the case was continued until the tenth day of March, 1914, when the application for probation was denied and the above-mentioned judgment rendered. No motion for a new trial was made at that time and no appeal taken from that judgment, but on the ninth day of April, 1915, the court being in some manner advised that it had exceeded its duty in imposing a sentence upon the defendant of four years in the state prison, whereas the maximum term for which the defendant could have been sentenced was three years, undertook to recall the defendant from the state prison where he had been sent, and thereupon undertook to modify or set aside the first judgment which had been rendered and to resentence the defendant. The record shows that on the fourteenth day of April a so-called judgment was entered, sentencing the defendant to the state prison for a term within that provided by the statute. At that time the defendant made a motion for a new trial and undertook to take this appeal, and the matter comes up upon the record as thus presented.

In our view of the case we do not think it is either necessary or proper at this time to consider the sufficiency of the evidence upon which the defendant was convicted. The defendant here claims that the first judgment was void, and that the court having set it aside and undertaken to sentence the defendant again, the action of the court in so doing was taken after the time when the statute provides that the defendant may be sentenced after verdict, and that, therefore, upon the authority of the case of

Rankin

v.

Superior Court,

157 Cal. 189, [106 Pac. 718], there is nothing for this court to do but to grant a new trial. This court however, takes the view that the first judgment rendered by the court on the fourteenth day of April, 1914, was not void, but was simply an erroneous judgment. This court has decided that when the term imposed is in excess of the maximum fixed by the statute it is merely erroneous and is not a void judgment. It was so held in