People v. Ward

ANGELLOTTI, J.

The defendant was convicted of embezzlement in the superior court of the city and county of San Francisco on November 14, 1899, and judgment was rendered by the court, Hon. F. H. Dunne, judge presiding, on December 2, 1899. Defendant appealed to this court from the judgment, the record on such appeal showing a judgment regular on its face, and on October 11, 1901, the judgment was affirmed. (134 Cal. 301.)

It was subsequently discovered that the only minute entry of a judgment in the superior court was the following, viz:—

“Saturday, December 2, 1899.

“The People of the State of California v. Bernard Ward.— No. 12847.

“The district attorney with the defendant and his counsel F. McGowan, Esq., came into court, by the court of the information duly presented on the 11th day of April 1899 by the district attorney of the city and county of San Francisco charging said defendant with the crime of felony to-wit: embezzlement of his arraign and plea of ‘Nt Gly’ as charged on said Information’; on the 29th day of April, 1899, of his trial and the verdict of the jury on the 14th day of November, 1899, Guilty as charged. The defendant show why judgment should not be against him through his counsel moved the court for a new trial upon all the statutory grounds on the 18th day of November, 1899, which motion was taken under advisement by the court, and now this day by the court ordered denied. And no sufficient cause being shown or to the court hereupon the court renders its.

“That Bernard Ward having been duly convicted in his court of the crime of felony, to-wit: embezzlement, It is there

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fore ordered, that the said Bernard Ward be punished by imprison in the state at Folsom for the term of seven (7) years.

“The defendant was then of the said city and county to be by him delivered into the custody of the proper officers of said state prison at Folsom, California.”

The district attorney thereupon moved, on notice, for an order correcting said minute entry so as to make it conform to and be a correct record of the judgment, stating in his notice that the motion would be based on the minutes and records of the court, and the knowledge of Hon. Frank H. Dunne, the judge who rendered said judgment.