People v. Chew Lan Ong

LORIGAN, J.

An information was filed against the defendant in the superior court of the city and county of San Francisco, charging him with the crime of murder.

Upon arraignment he pleaded “Not guilty,” but subsequently withdrew this plea and entered one of “'Guilty.”

When this latter plea was received by the court, it was conceded by the attorney for the defendant, that the duty devolved upon the court of determining, and fixing, under section 1192 of the Penal Code, the degree of crime, before passing sentence, and it was stipulated that the testimony taken at the preliminary examination of the defendant be introduced in evidence and used by the court for that purpose.

Thereafter, on March 10, 1902, the court determined from such evidence, that the crime was murder of the first degree, and adjudged that the defendant suffer the penalty of death, and on March 12, 1902, the judge of said court signed and issued a warrant of execution, directing the warden of the state prison, at San Quentin, to execute the judgment of death against said defendant on the sixth day of June, 1902.

The defendant appeals from said judgment and the order of execution, and contends,—1. That the court had no an

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thority to determine the degree of the crime; and 2. That the judgment and order of execution are void, because the court had no power to direct the warden of the state prison to execute the defendant.

In their briefs, counsel for appellant, upon the first point urge, that the power attempted to be conferred on the court by said section 1192, to determine the degree of crime upon the plea of guilty before passing sentence, is violative of that provision of both the state and federal constitutions providing that the trial of all crimes shall be by jury.

This is no new point. The same contention was made in this court forty years ago, and decided adversely to appellant’s claim.

In

People

v.