People v. Superior Court

SHENK, J.

This is an application for a writ of mandate to compel the respondent court and judge to enforce a judgment against the defendant Salvadore Maggio in an action (No. 1959) against him, charging manslaughter.

On the night of November 12, 1927, the defendant was returning in a truck to the Imperial Valley from Yuma, Arizona. About halfway between Yuma and Holtville the truck collided with a Ford ear which had been left partly on the paved portion of the highway. The driver of the Ford car had stopped it at that place for the purpose of repairing a tube. The impact knocked the driver of the Ford car forward into another car which had stopped a few feet in front of the Ford car pending the tube repairs. From the injuries thus received the driver of the Ford car subsequently died, and Maggio was charged with manslaughter. The jury returned a verdict of guilty as charged in the information and a new trial was granted on February 14, 1928. On May 21, 1928, the defendant appeared before the court, entered a plea of guilty as charged and applied for probation. On June 1, 1928, he was sentenced to confinement in the state' prison. The sentence was thereupon suspended and the defendant was placed on probation.

In another action in the same court (No. 1947) against this same defendant he was charged with a violation of section 367c of the Penal Code, so-called “failure to stop and render aid,” etc., charge, committed on or about August 23, 1927. He was convicted in that action on November 16, 1927, four days after the commission of the manslaughter offense and the judgment of conviction was affirmed.

(People

v.

Maggio,

90 Cal. App. 683 [266 Pac. 813].) The question is now presented whether it was within the power of the court to entertain and act upon an application for probation in the manslaughter charge in view of the fact

[690]

that after the commission of that offense he was convicted on the so-called “failure to stop and render aid,” etc., charge.

Section 1203 of the 'Penal Code, as amended in 1927 (Stats. 1927, p. 1493), contains the provisions of the law under which application for and admission' to probation were authorized in the action here involved. It is therein provided that after conviction or plea of guilty of a public offense, in cases where discretion is conferred on the court, the defendant may be placed on- probation under the circumstances indicated in the section with the following proviso: “Further provided, however, that probation shall not be granted to any defendant who at the time of the perpetration of the crime or at the time of his arrest was armed with a deadly weapon (unless at the time he had a lawful right to carry the same), nor to one who used or attempted to use a deadly weapon in connection with the perpetration of the crime, nor to one who in the perpetration of the crime inflicted great bodily injury or torture, nor to any defendant unless the court shall be satisfied that he has never in any place been previously convicted of a felony. ...”