Ex Parte Ballard

California Supreme Court Mar 31, 1906 No. Crim. No. 1308.Published

Before: McFarland

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Holding. The court held that a defendant is not entitled to discharge under Penal Code section 1262 via habeas corpus when the appellate court failed to order a discharge upon reversing a judgment, as the proper remedy is to apply to the appellate court itself. Furthermore, a reversal of a judgment does not mandate discharge if an appeal from an order denying a new trial remains pending or unresolved.

Issues

Whether a defendant is entitled to discharge under Penal Code section 1262 when the appellate court reverses a judgment without ordering a new trial but fails to explicitly order a discharge.
Whether the trial court or a court hearing a habeas corpus petition has jurisdiction to order a discharge under section 1262.
Whether a defendant is entitled to discharge when the record fails to show the disposition of an appeal from an order denying a new trial.

Disposition. remanded

Quotations verified verbatim against the opinion

“The section does not provide for the discharge of the appellant by any court other than the appellate court to which his case has been appealed.”

“If the court had in mind said section, it would, if it desired to discharge a defendant, have so directed, and if it had thought that there should be a new trial it would have so ordered in the judgment of reversal.”

Synopsis

APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of the City and County of San Francisco.

The facts are stated in the opinion of the court.

McFARLAND, J.

This is a petition by IT. H. MeCloskey, on behalf of Frank Ballard, for the latter’s discharge on

habeas corpus

from the custody of the sheriff of the city and county of San Francisco. His claim to be'discharged is based on the provision of section 1262 of the Penal Code, which is as follows: “If a judgment against the defendant is reversed without ordering a new trial, the appellate court must if he is in custody direct him to be discharged therefrom.” In the petition for the writ in the cause at bar the statement of the facts relied on for a discharge are very meager, and are, in substance, as follows: That Ballard was lawfully committed by a

magistrate;

that afterwards an information based on the commitment was filed against him by the district attor

[115]

ney; that he was tried upon said information in the superior court of said city and county, and was on March 29, 1904, found guilty; that he made a motion for a new trial which was denied; that on June 9, 1904, he was sentenced to ten years’ imprisonment in the state prison; that on June 10, 1904, he .appealed from the judgment and from the order denying a new trial; that the appellate court on June 27, 1905, 1 Cal. App. 222 [81 Pac. 1040], reversed the judgment; that the

remittitur

was filed in the superior court, and that a copy of the

remittitur

is attached to the petition and made a part thereof; that after the

remittitur

was filed he made a motion in the superior court to be discharged, and introduced said

remittitur

in evidence, and that the superior court denied the motion. This

remittitur

shows that in the district court of appeals of the first district, in the case entitled

“The People, etc., Respondent,

Ex Parte Ballard

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