Green v. Superior Court

WASTE, C. J. The petitioner, Jack D. Green, was jointly charged with John Francis Began, by an indictment in two counts, and they were convicted in the respondent Superior Court of the crimes of murder in the first degree and burglary. The death penalty was imposed on each defendant for his participation in the murder, and on appeal this court affirmed the judgment and orders of the lower court. (People v. Green et al., 217 Cal. 176 [17 Pac. (2d) 730].) After affirmance of the judgment, Began was executed. On application by Green to his Excellency, Governor James Bolph, Jr,, the chief executive commuted the sentence of Green from death to life imprisonment, with certain conditions and restrictions not here material. Since that time, petitioner has been, and now is, in the state prison at San Quentin, where he is serving out the commuted sentence.

After the affirmance of the judgment in this court, and subsequent to the commutation of the sentence to life imprisonment, Honorable B. Bey Schauer, judge of the respondent court by whom the trial of the indictment was conducted, and who, in the discharge of his official duty, had imposed the death penalty on the two defendants, issued an order resentencing the petitioner, and again fixing the death penalty. By this writ of review petitioner seeks an annulment of this last order of the respondent court.

It is the contention of the respondent that the petitioner has been “twice convicted,” within the meaning of article VII of the state Constitution relating to the pardoning power of the chief executive. The commutation of the sentence of petitioner, it is admitted, was not granted upon the written or any recommendation of a majority of the justices of the Supreme Court. It is, therefore, the theory of the respondent that the purported commutation by the Governor of petitioner’s sentence is a nullity and must be disregarded. The judgment of death not having been executed, respondent contends it was its duty, under the provisions of section 1227 of the Penal Code, to appoint a day upon which the judgment should be executed. That is the order petitioner seeks to have annulled. Respondent has demurred to the petition.

[3]Respondent correctly states the issue thus: “The two key words of the constitutional provision here in issue are the words ‘twice convicted’.” It maintains that the petitioner has been “twice convicted” within the meaning of the Constitution because the jury found the petitioner guilty upon the two counts of the indictment, each charging a separate felony. No authorities are cited by either party on the precise point thus stated, but each of them relies upon the construction of certain language used in the debates in the convention when the Constitution of 1879 was being framed.