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whether he has any legal cause to show why judgment should not be pronounced against him. [Amendment, approved April 9, 1880; Amendments 1880, 26 (Ban. ed. 172); took effect immediately.] Pronouncing judgment-Erroneous entry of date of judgment made in the minutes by the clerk may be corrected by order of court, even after appeal, and cannot invalidate

a judgment regularly pronounced: People v. Murback, 64 Cal. 369. The statement required by this section, while necessary to pronouncing judgment, is no part thereof: Id.

1201. What cause may be shown against the judgment.

SEC. 1201. He may show, for cause, against the judgment:

1. That he is insane; and if, in the opinion of the court, there is reasonable ground for believing him to be insane, the question of insanity must be tried as provided in Chapter VI., Title X., Part II., of this code. If, upon the trial of that question, the jury find that he is sane, judgment must be pronounced; but if they find him insane, he must be committed to the state lunatic asylum until he becomes sane; and when notice is given of that fact, as provided in section thirteen hundred and seventy-two, he must be brought before the court for judgment;

2. That he has good cause to offer, either in arrest of judgment or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment, or for a new trial.

Arrest of judgment on defendant's motion: Sec. 1185, note.

Arrest of judgment by court: Sec. 1186, note.

Motion for new trial: Sec. 1179, notes.

Punishment of person while insane: Sec.

1367.

Subd. 1. Insanity of defendant: See section illustrated in People v. Pico, 62 Cal. 50, 55.

1202. If no cause shown, judgment to be pronounced.

SEC. 1202. If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered.

Judgment, rendition of.-After a plea or verdict of guilty, the court must appoint a time for pronouncing judgment, as provided in section 1191. It may be pronounced immediately after a verdict or plea of guilty, if the defendant consents thereto: People v. Robinson, 46 Cal. 94. But it need not be at the same time the verdict is rendered: People v. Felix, 45 Id. 163. It must be given in open court, not in the judge's chambers: Anonymous, T. Raym. 68. And should be on a judicial day, and not on Sunday: Young v. State, 39 Ala. 357. It is generally customary, before pronouncing judg. ment, to ask the defendant if he has any legal cause to show why judgment should not be pronounced against him. In some states this is unnecessary: State v. Ball, 27 Mo. 324; Jeffries v. Commonwealth, 12 Allen, 145, 153. But in this state it is required: Sec. 1200. Judgments of inferior criminal courts are not required to be different from those of like courts of general jurisdiction: People v. Forbes, 22 Cal. 135; Ex parte Kearney, 55 Id. 212, 228. Judgment, form of.-The judgment entered in the minutes is sufficient, if it states of what offense the defendant was finally convicted and the penalty imposed. It need not recite the facts contained in the other papers constituting the record in the action: Re Edward Ring, 28 Cal. 247; Ex parte Murray, 43 Id. 455. Nor the time of the commencement of the imprisonment. It is sufficient if it states the duration of the imprisonment and the place of confinement: State v. Smith, 10 Nev. 107. Judgments

of inferior criminal courts are not required to be in different form from those of like courts of general jurisdiction: People v. Forbes, 22 Cal. 135. But see Ex parte Kearney, 55 Id. 212, 228.

Judgment-Should be certain and definite.--As a general rule, in criminal cases a judgment should be certain and definite and complete in itself, so that what it requires to be done may be known without resort to anything outside of the record: People v. Forbes, 22 Cal. 135. This, however, is not universally so, and it is a common practice in criminal courts to enter judgments of imprisonment at the expiration of sentences in other cases: Brown v. Commonwealth, 4 Rawle, 259; Russell v. Commonwealth, 7 Serg. & R. 489; State v. Smith, 5 Day, 175; King v. Wilkes, 4 Burr. 2575. Thus a judgment that the defendant be imprisoned for a specified term, "to commence at the expiration of previous sentences," is valid: People v. Forbes, 22 Cal. 135. So, too, is a judg ment "that the defendant be imprisoned in the state prison for the term of three years from the date of his incarceration:" People v. King, 28 Id. 265. Or that the defendant "be imprisoned four years from the time of his delivery to the warden," etc.: People v. Hughes, 29 Id. 257. A failure to specify any time for the imprisonment to commence does not invalidate the judgment: State v. Smith, 10 Nev. 107. But a judgment for a term longer than that provided by the statute will be reversed, and the lower court directed to proceed to judg.

ment upon the verdict: People v. Riley, 48 Cal. 549; see Ex parte Ah Cha, 40 Id. 426. So a judgment which attempts to punish a man for an act which is not a crime is absolutely void: People v. Kearney, 55 Id. 212; see People v. Liscomb, 60 N. Y. 569; Ex parte Siebold, 100 U.S. 371. After sentence, but before the judgment is signed, it may be amended by shortening the time: People v. Thompson, 4 Cal. 238. If the indictment charges more than one offense in separate counts, and the verdict is general, the presumption will be that the judge who tried the case pronounced judgment for the offense to which the evidence was directed: People v. Shotwell, 27 Id. 394.

Judgment-Void and voidable defined: See a very valuable article by S. D. Thompson on "Void Sentences" in 4 Crim. L. Mag. 797. An error which will render a judgment voidable only is the want of adherence to some prescribed mode of proceeding in conducting the action or defense. An error which renders a judgment void is such an illegality as is contrary to the principles of law as distinguished from rules of procedure: Ex parte Gibson, 31

Cal. 619. Thus a judgment sentencing a person to imprisonment in the state prison upon conviction for a misdemeanor is void: Ex parte Ah Cha, 40 Id. 426. But in Ex parte Max, 44 Id. 579, such a judgment was held simply erroneous, subject to be corrected on appeal. The judgment is not void because it does not state the offense of which the prisoner was convicted, if it shows that he was indicted for some offense, and tried and convicted, and that the sentence passed on him was one which the court had jurisdiction to pronounce for some offense of which he might have been convicted under the indictment: Ex parte Gibson, 31 Id. 619. But a judgment which punishes a man for an act which is not a crime is absolutely void: Ex parte Kearney, 55 Id. 212; Matter of Corryell, 22 Id. 178. So a sentence of a party convicted under an unconstitutional law is void: Ex parte Siebold, 100 U. S. 371.

Arrest of judgment on defendant's motion: Sec. 1185, note.

Arrest of judgment by court: Sec. 1186, note.

1203. Court may summarily inquire into circumstances, in aggravation or mitigation of punishment.

SEC. 1203. After a plea or verdict of guilty, where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the oral suggestion of either party that there are circumstances which may be properly taken into view either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct.

Reasons for section.-"The provisions of this and the succeeding section are intended to regulate the practice in relation to the subject embraced therein, and sufficiently explain themselves. They also perform another office. A violation of either section is punished as a misdemeanor (sec. 166, subd. 8, of this code), and thereby all extrajudicial influences prevented:" Commissioners' note.

Mitigation and aggravation of punishment. Where, by law, upon a plea or verdict of guilty, a discretion is vested in the court to determine the extent of the punishment, it should, before passing sentence, look at any evidence proper to "influence a judicious magistrate to make the punishment heavier or lighter:" 1 Bish. Crim. L., sec. 948; Regina v. Dignam, 7 Ad. & El. 593; Rex v. Cox, 4 Car. & P. 538; Rex v. Withers, 3 T. R. 428; Rex v. Gregory, 1 Car. & Kir. 228; People v. Cochran, 2 Johns. Cas. 73. Only circumstances of aggravation on the one side, and of mitigation on the other, will be received. Evidence that no crime has been committed will not be received, the verdict being conclusive of that fact: State v. Brinyea, 5 Åla. 241. Under the English practice, it is customary for the crown to produce affidavits in aggravation, which are

first read, then for the defendant to produce and read affidavits in mitigation, after which the counsel for the crown is heard, and then the counsel for the defendant: Regina v. Dignam, 7 Ad. & El. 593. This rule may vary, however, depending upon the circumstances of each particular case: King v. Sutton, Id. 594, note. In this country the proper practice seems to be for the prisoner to present any extenuating circumstances upon which he may rely to make his sentence light, by producing in open court any witnesses he may have at a reasonable time before sentence is pronounced: Sec. 1204. He is entitled, as a matter of right, to a subpoena to compel the attendance of such witnesses: State v. Smith, 2 Bay, 62. So where by law the fixing of the punishment is to be determined by the jury when they find the defendant guilty, evidence in mitigation of the punishment is admissible: Robbins v. State, 20 Ala. 36; Morton v. Trustees etc., 18 Ill. 383; Sarah v. State, 18 Ark. 114; Kistler v. State, 54 Ind. 400; Eastman v. State, Id. 441. Evidence in such cases of what amounts to a crime separate from the one charged in the indictment is not admissible in aggravation of the offense. Ingram v. State, 39 Ala. 247; Skains v. State, 21 Id. 218, 222; Baker v. State, 4 Pike, 56, 61.

1204. Proof of former conviction or of facts, etc., in mitigation, etc., how made. SEC. 1204. The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may

direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.

1205. Fines, what judgment may direct.

SEC. 1205. A judgment that the defendant pay a fine may also direct that ne be imprisoned until the fine be satisfied, specifying the extent of imprisonment, which must not exceed one day for every dollar of the fine. [Amend ment, approved March 7, 1874; Amendments 1873-4, 455; took effect sixtieth day after passage.]

Payment of fine.-A judgment which di rects the defendant to pay a fine, or be imprisoned until it is paid, should specify the extent of imprisonment, but a failure to do so will not render it inoperative: People v. Markham, 7 Cal. 208. The prisoner is entitled to a credit of two dollars (one dollar under the present law) for each day he remains in prison, and may at any time pay the sum remaining due and claim his discharge: Ex parte Kelly, 28 Id. 414. A judgment of a justice of the peace, in

a case of misdemeanor, that the defendant be fined three hundred dollars, and that in default of payment he be imprisoned in the county jail not exceeding three hundred days, is a substantial compliance with this section: Ex parte Ellis, 54 Id. 204. See this case followed in Ex parte Chin Yan, 60 Id. 78.

This section does not apply to section 330 in regard to the offense of gaming: See Ex parte Harrison, 63 Cal. 299.

1206. Judgment to pay a fine constitutes a lien.

SEC. 1206. A judgment that the defendant pay a fine constitutes a lien, in like manner as a judgment for money rendered in a civil action.

Compare with section 1214.

1207. Entry of judgment and judgment roll.

SEC. 1207. When judgment upon a conviction is rendered, the clerk must nter the same in the minutes, stating briefly the offense for which the conviction was had, and the fact of a prior conviction (if one), and must, within five days, annex together and file the following papers, which will constitute a record of the action:

1. The indictment or information, and a copy of the minutes of the plea or demurrer;

2. A copy of the minutes of the trial;

3. The charges given or refused, and the indorsements thereon; and,

4. A copy of the judgment. [Amendment, approved April 9, 1880; Amendments 1880, 26 (Ban. ed. 172); took effect immediately.]

Record of the action.-A bill of exceptions which has been duly settled and signed by the judge and filed constitutes a portion of the record of the action: People v. Trim, 37 Cal. 274. The record should show that the defendant was arraigned and pleaded, and if it does not show these facts, it will be presumed that there was no arraignment or plea: People v. Gaines, 52 Id. 479. The proceedings before the committing magistrate do not form a portion of the judgment roll in criminal cases: People v. Shubrick, 57 Id. 565. The record need not show that accused was present at the trial: People v. Sepulveda, 59 Id. 342. A copy

272

of the minutes of the trial constitutes a part of the judgment roll: People v. Gaines, 52 Id. 479.

Subd. 3. Charge as part of the record: See People v. Flahave, 58 Cal. 249, 252. Action of court upon instructions, how shown: Sec. 1176, note.

Entry of judgment.-Where the judgment was immediately entered in the memorandumbook kept by the clerk, but was not entered on the docket until twenty days thereafter, it was held not to avoid the judgment: Ex parte Raye, 63 Cal. 491.

CHAPTER II.

THE EXECUTION

1213. Authority for the execution of a judgment other than of death.

SEC. 1213. When a judgment other than of death has been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.

1214. If for fine alone, execution to issue as in civil cases.

SEC. 1214. If the judgment is for a fine alone, execution may be issued thereon as on a judgment in a civil action.

Stats. 1851, 212. See also sec. 1209.
Commitment for contempt under this sec-

tion: See Grady v. Superior Court, 64 Cal. 155; Matter of Tyler, Id. 434, 438.

1215. Judgment of fine and imprisonment, by whom and how executed.

SEC. 1215. If the judgment is for imprisonment, or a fine, and imprisonment until it be paid, the defendant must forth with be committed to the custody of the proper officer, and by him detained until the judgment is complied with.

Payment of fine: Sec. 1205.

Section is cited in Ex parte Harrison, 63 Cal. 299, 300; Matter of Tyler, 64 Id. 438.

1216. Duty of sheriff on receiving copy of judgment of imprisonment.

SEC. 1216. If the judgment is for imprisonment in the state prison, the sheriff of the county must, upon receipt of a certified copy thereof, take and deliver the defendant to the warden of the state prison. He must also deliver to the warden the certified copy of the judgment, and take from the warden a receipt for the defendant.

Execution: Sec. 1213.

1217. Warrant of execution upon judgment of death.

SEC. 1217. When judgment of death is rendered, a warrant, signed by the judge, and attested by the clerk under the seal of the court, must be drawn and delivered to the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of judgment.

Execution of death-sentence: See secs. 1228, 1229. The day for carrying into effect a sentence of death should not be designated in the judgment, but in the warrant for the execution: People v. Bonilla, 38 Cal. 699; People v. Murphy, 45 Id. 137. If the judgment of death is not executed on the day appointed, the court rendering it may appoint another day for carrying it into effect: People v. Bonilla, 38 Id. 701. Upon the affirmance of an order or judgment in a criminal case, no order of the appellate court directing the lower court to

The

proceed to carry the judgment into effect is necessary: People v. Dick, 39 Id. 182. defendant is entitled to be in court when an order for his execution is made: People v. Sprague, 54 Id. 92.

A statement in the judgment that defendant be taken to the "place of public execution" is surplusage. Section 190 prescribes that death shall be by hanging, and sections 1228 and 1229 direct how it shall be done: People v. Brown, 59 Cal. 345, 357.

1218. Judge to transmit statement of conviction and testimony to governor. SEC. 1218. The judge of the court at which a conviction requiring judgment of death is had must, immediately after the conviction, transmit to the governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.

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1219. Governor may require opinion of justices of supreme court, etc., thereon. SEC. 1219. The governor may thereupon require the opinion of the justices of the supreme court and of the attorney-general, or any of them, upon the statement so furnished.

1220. Judgment of death, when suspended.

SEO. 1220. No judge, court, or officer other than the governor can suspend the execution of a judgment of death, except the sheriff, as provided in the six succeeding sections, unless an appeal is taken.

1221. If reason to suppose defendant insane, jury to inquire into it; how and by whom ordered.

SEO. 1221. If, after judgment of death, there is good reason to suppose that the defendant has become insane, the sheriff of the county, with the concurrence of the judge of the court by which the judgment was rendered, may summon from the list of jurors selected by the supervisors for the year a jury of twelve persons to inquire into the supposed insanity, and must give immediate notice thereof to the district attorney of the county.

1222. Duty of district attorney upon inquisition.

SEO. 1222. The district attorney must attend the inquisition, and may produce witnesses before the jury, for which purpose he may issue process in the same manner as for witnesses to attend before the grand jury, and disobedience thereto may be punished in like manner as disobedience to process issued by

the court.

1223. Inquisition, how certified and filed.

SEO. 1223. A certificate of the inquisition must be signed by the jurors and the sheriff, and filed with the clerk of the court in which the conviction was had.

1224. Proceedings upon finding of jury.

SEC. 1224. If it is found by the inquisition that the defendant is sane, the sheriff must execute the judgment; but if it is found that he is insane, the sheriff must suspend the execution of the judgment until he receives a warrant from the governor, or from the judge of the court by which the judgment was rendered, directing the execution of the judgment. If the inquisition finds that the defendant is insane, the sheriff must immediately transmit it to the governor, who may, when the defendant becomes sane, issue a warrant appointing a day for the execution of the judgment.

1225. Proceedings when female is supposed to be pregnant.

SEC. 1225. If there is good reason to suppose that a female against whom a judgment of death is rendered is pregnant, the sheriff of the county, with the concurrence of the judge of the court by which the judgment was rendered, may summon a jury of three physicians to inquire into the supposed pregnancy. Immediate notice thereof must be given to the district attorney of the county, and the provisions of sections twelve hundred and twenty-two and twelve hundred and twenty-three apply to the proceedings upon the inquisition.

1226. Proceedings upon the finding of the jury.

SEO. 1226. If it is found by the inquisition that the female is not pregnant, the sheriff must execute the judgment; if it is found that she is pregnant, the sheriff must suspend the execution of the judgment, and transmit the inquisition to the governor. When the governor is satisfied that the female is no

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