In Re Huson

THOMPSON (R. L.), J.

—Upon petition for writ of

habeas corpus,

the petitioner contends he is entitled to his discharge from custody for the reason that the judgment of commitment is void for failure on the part of the court to determine the degree of his crime before pronouncing sentence.

The information which was filed' against the defendant contained four counts. The second count charged him with an attempt to commit robbery. On June 6, 1928, the defendant appeared in court with his attorney and entered a plea of guilty of the offense charged in the second count. The other counts were thereupon dismissed. At- that time the defendant waived time for pronouncing sentence, and the following proceedings occurred:

“The court: ... You have heretofore been duly and legally arraigned; ... You have entered a plea of guilty to count II and you have waived time for the pronouncement of judgment, and your counsel stated you have no just cause or legal reason to show why judgment should not be pronounced against you. Have you anything to say to the court . . . before judgment is pronounced? Defendant Huson: No, sir. . . . (The court) Mr. Louis Morgan Huson, it is ordered, adjudged and decreed that you be sentenced to be committed to the state prison of the State of California at San Quentin, for the term prescribed by law. . . . Mr. Hill (attorney for defendant) : As to counts I, III and IV, may we have an order, . . . (The court) : Just a minute gentlemen. What about the degree? We didn’t fix that. Mr. Lippold (District Attorney) : It is an attempted robbery, your honor. I don’t know that there is a degree but there was a deadly weapon used, so if there is any degree it would be first degree attempted robbery. The Court: That is your understanding? Mr. Hill: Yes, if your honor please. The defendant informs me there were no bullets in the gun, but under the latest decision of the Supreme Court it would still constitute a deadly weapon. The Court: Very well.

[573]

The court will find that this is attempted robbery in the first degree.”

It is unnecessary to fix the degree of the crime of attempted robbery. The penalty for an attempt to commit robbery is the same whether the offense be that of robbery of the first or the second degree. The penalty is the same whether robbery is committed with or without the use of a deadly weapon.