People v. Lopez

WASTE, C. J.

The defendant was convicted of the offense of driving an automobile while he was intoxicated. The jury rendered the following verdict: “We the jury in the above entitled cause, find, the defendant, P. Lopez, guilty of the crime as charged and recommend that he be sentenced to the County Jail, and further recommend the sentence be suspended. ’ ■ The defendant was thereupon sentenced to serve one year in the county jail. On appeal he raises three questions, two of which were satisfactorily answered by the District Court of Appeal of the Third Appellate District; but one was not referred to, for which reason it was deemed best to transfer the cause, here for consideration by this court.

As to the two points considered by the District Court of Appeal, we approve and adopt the opinion of Mr. Justice Thompson, concurred in by Mr. Justice Plummer and Mr. Presiding Justice Finch, as follows:

“The appellant contends that the verdict is void for the reason that, (1) the court disregarded the recommendation of the jury to suspend the sentence, and, (2) the jury failed to recommend a specific term of imprisonment.

“Section 112 of the California Vehicle Act (Stats. 1927, p. 1436) provides in part:

“ ‘It shall be unlawful for any person . . . who is under the influence of intoxicating liquor ... to drive a vehicle on any public highway within this state.

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“ ‘Any person violating the provisions of this section shall upon conviction be punished by imprisonment in the' county jail for not less than ninety days nor more than one year or by imprisonment .in the state prison for not less than one year nor more than three years, or by a fine of not less than two hundred dollars ($200), nor more than five thousand dollars ($5,000), and upon every verdict of “guilty” under this section, the jury shall recommend the punishment and the court in imposing sentence shall have no authority to impose a sentence greater than that recommended by the jury.’

“The recommendation of the jury in this case that the sentence be suspended, is not authorized by statute, and is an invasion of the province of the court. That portion of the verdict, however, is mere surplusage and may be disregarded. It does not invalidate the verdict.