People v. Lauman

JAMES, J. Appellant was convicted of a felony, it being charged that he presented false proofs of loss under a policy of fire insurance. He presented a motion for a new trial, which was denied, and then made a motion in arrest of judgment, which motion was granted. Upon an appeal taken by the people the supreme court reversed the order arresting the judgment. (People v. Lauman, 187 Cal. 214 [201 Pac. 459].) Remittitur certifying the judgment of the supreme court was received and filed in the trial court on the 14th of November, 1921. Defendant had been released on bail and a bench-warrant was issued to bring him into court. Upon information received by his attorney that such warrant had been issued, defendant surrendered himself into custody and appeared before the court on November 21st with his counsel. At that time his counsel presented the objection that, under the provisions of sections 1191 and 1202 of the Penal Code, no sentence could be pronounced, but a new trial should be ordered because more than five days had elapsed from the date of the verdict of the jury. The court stated that he could not hear the argument at that time, owing to the fact that another cause was on trial, and continued the hearing until the next morning. At that time defendant’s counsel presented a written demand for a new trial. The hearing was continued until 2 o’clock of the same day and the court said: “I want to think about this for a little while. I will continue the matter until Friday.” Friday was the 25th of November. On the latter day, the matter being called again, the court stated that he would take further time to consider the questions presented as he was not ready to decide them, whereupon a further continuance was ordered until November 28th, that being Monday. At the last-named time the court denied the application for a new trial and overruled an objection to rendering of judgment, and proceeded to sentence the defendant to a term of imprisonment in the penitentiary. *146 This judgment appellant contends was erroneous. He first insists that the provisions of section 1191, requiring that judgment must be pronounced within not less than two or more than five days after the verdict, are mandatory, and that where there are no proceedings pending on a general motion for a new trial or for probation, as was this case, if the judgment is pronounced after the five days have elapsed, it must be reversed. The motion in arrest of judgment and the ruling of the court granting the same, and the subsequent appeal by the people, must be held to have suspended the requirements of the statute as to the passing of sentence until the appeal had been determined. When the appeal was determined and the remittitur sent down, it revived the verdict, which in law should be considered as being given new life as of the date of the filing of the remittitur. There was a condition attending this case which extended the date when the court was required to act further, to wit, the condition that the defendant was out on bail and was not available for the purpose of having sentence imposed upon him. The court could not legally sentence the defendant for a felony in his absence; hence was powerless by reason of the law itself to do the very thing that would have been required of him where the person of the defendant could be produced at any time upon the order of the court alone. From the record, then, it appears that the first day after the filing of the remittitur when the defendant was available for the purpose of being sentenced was the 21st of November, 1921. Under the terms of the statute as they have been construed, it was the court’s duty, within a period of time not to exceed five days from that date, to pronounce judgment. Had appellant rested alone upon his contention first made—that sentence could not be pronounced at any time after the filing of the remittitur because more than five days had elapsed from the date when the verdict was returned by the jury, his plea would have been insufficient for reasons already stated. But he particularly specified the objection against the pronouncement of the judgment that more than five days had elapsed after filing of the remittitur, and asked for a new trial. In Rankin v. Superior Court, 157 Cal. 192 [106 Pac. 719], the court said: “If judgment was not pronounced within the time limited, a *147 new trial was made imperative if the defendant so desired; he became ‘entitled’ to it.” ‘‘The delay beyond the time specified for pronouncing judgment renders it imperative that defendant have a new trial if he asks for it.” (People v. Winner, 31 Cal. App. 352 [160 Pac. 689].) In People v. Okomoto, 26 Cal. App. 568 [147 Pac. 598], the court said: ‘‘It appears that the defendant was entitled to a new trial; but it further appears that a new trial was not refused, inasmuch as he did not ask for it. . . . It has been held by this court that, in the absence of any objection made by the defendant at the time of pronouncing judgment and in the absence of any demand made by him for a new trial upon the ground that the legal time limit had expired, the court might rightfully enter the judgment. (People v. Polich, 25 Cal. App. 464 [143 Pac. 1065].)” Prom the day the defendant appeared in court after the filing of the remittitur, until the day of sentence, seven days elapsed, which brought the date of sentence outside the period prescribed by the statute. A new trial should have been ordered. See the further cases: People v. Boling, 32 Cal. App. 42 [161 Pac. 1169]; People v. Gilbreth, 33 Cal. App. 23 [164 Pac. 18]. The judgment and order are reversed. Conrey, P. J., and Shaw, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 20, 1922. All the Justices, present concurred, except Lawlor, J., who dissented and rendered the following opinion on December 8, 1922: