People v. Superior Court

By an information filed in the Superior Court of Alameda County [1] Jesus Prudencio was charged with the crime of murder committed October 14, 1926, as follows: “ . . . that he did then and there unlawfully, wilfully, feloniously and of his malice aforethought, kill and murder one Antonio Garcia.” The foregoing was an allegation of murder of the first degree and included all the subdivisions and lesser degrees of murder and also manslaughter. Upon trial had the jury, on January 12, 1927, returned its verdict finding the defendant guilty of “murder of the first degree, as charged in the information.” In its charge the trial court specially instructed the jury in case it found the defendant guilty of murder of the first degree that “then whether this defendant shall suffer death, or confinement in the state’s prison for life is a matter committed solely to your discretion and conscience. If you determine that the death penalty shall not be inflicted, it will be necessary to expressly declare in your verdict that his punishment shall be by imprisonment in the state’s prison for life; otherwise he shall suffer the extreme penalty of the law.” Four forms of verdict were prepared by the court, read to the jury, and taken by it to the jury-room. The first was in the simple form, which, if returned, carried with it the death penalty as explained by the court. Stripped of formal verbiage it read, “We the jury find the defendant guilty of murder of the first degree, as charged in the information.” The second read, “We the jury find the defendant guilty of murder of the first degree as charged in the information and fix the punishment at confinement in the state’s prison for life.” The third read, “We the jury find the defendant guilty of murder of the second degree, as charged in the information,” and the fourth was the simple form of “not guilty.” Upon returning the first form of verdict into court properly signed by its foreman the jury was polled and affirmed its verdict of murder in the first degree, which was duly recorded by the clerk.

“The defendant was then asked whether he had any legal cause to show why judgment should not be pronounced against him and the defendant makes and submits a motion in arrest of judgment and the same is by the Court denied.

“No sufficient cause being alleged or appearing to the Court why judgment should not be pronounced, the Court thereupon rendered judgment and ordered and adjudged that whereas the defendant Jesus Prudencio had been duly convicted in this Court of the crime of felony, to wit, murder of the second degree, that he therefore be confined in the state prison of the State of California at San Quentin as prescribed by law, and that he be remanded to the custody of the Sheriff of the County of Alameda and be by him taken and delivered to the Warden of the state prison of the State of California at San Quentin.”

Thereupon the defendant announced an appeal from the orders denying his motion for a new trial and in arrest of judgment, respectively, and from the judgment of conviction. At the same time the People appealed from the judgment. Upon the petition of the People an alternative writ was issued out of this court directed to respondent judge, commanding him to show cause why the judgment pronounced by him in said cause, entitled “In the Superior Court of the State of California, in and for the County of Alameda, the People of the State of California, Plaintiff, v. Jesus Prudencio, Defendant,” adjudging said Jesus Prudencio guilty of murder in the second degree, should not be annulled and set aside as being in excess of jurisdiction and further commanding him to show cause why a peremptory writ of mandamus should not issue commanding Mm to pronounce judgment imposing the death penalty against said Jesus Prudencio as provided by law in such cases. [2] No substantial grounds exist upon which the judgment as entered may be sustained. It is clearly without authority of law and does not purport to respond to any verdict rendered by the jury. The defendant was before the court for the purpose of receiving the sentence imposed by law. It was the legal duty of the court either to pro

“The law submits to the jury, under the instruction of the court, the question as to the degree of murder, if any, of which the defendant is guilty in any instance, and section 190 of the Penal Code further provides that one found guilty of murder in the first degree ‘shall suffer death or confinement in the state prison for life, at the discretion of the jury.’

“Whatever may have been the actuating consideration in the minds of the legislature in enacting section 190, whether because they believed there are instances of murder falling within the definition of murder of the first degree, which, because characterized by a less degree of atrocity or other mitigating circumstance, call for a milder punishment than that of death, or whether their reason was something else, the fact remains that they have confided the power to affix the punishment within these two alternatives to the absolute discretion of the jury, with no power reserved to the court to review their action in that respect. ’ ’

The decisions of this court could be no other way if the provisions of section 1157 of the Penal Code are to be at

The law on this subject was early stated in an instruction given in People v. Iams, 57 Cal. 115 , in the following language: “Should the jury find the defendant guilty of murder in the first degree, without affixing the penalty, the law in such cases adjudges the penalty and that penalty is death.” The above instruction is substantially like the instruction given in the instant case and has for many years been consistently recognized as a correct statement of the law by all the courts of this state. Prior to the amendment of section 190 of the Penal Code, adopted March 28, 1874, murder was punishable by death. No discretion was theretofore reposed in the jury to relieve the accused of the extreme penalty of the law upon a verdict

The question before the court for determination was whether the evidence as a matter of law supported the verdict. If it did it had no alternative but to pronounce the sentence of the law. The People’s right to proceed against the defendant for the crime charged cannot be defeated by the court substituting its verdict for the verdict of the jury. Its duty was to first pass upon the motion for a new trial. If it was advised that the evidence was insufficient to support the verdict and for that reason granted a new trial, the People would have had the right to appeal directly from the order. (See. 1238, Pen. Code.) In the view of the trial court there was neither conviction had of murder in the first degree nor judgment pronounced upon such a conviction. If this view be correct then the People’s right of appeal may be defeated by a failure or refusal on the part of the court to comply with the mandatory provisions of the statute. Under such a procedure the defendant would be secure against a new trial which if granted, as it should be if the evidence is insufficient to sustain the verdict, would again place him upon his trial at the risk of having the case against him strengthened by new or additional evidence to the degree that a verdict carrying with it the death penalty would be impregnable to assault. This precise contingency happened as related in People v. Grill, 151 Cal. 592 [ 91 Pac. 515 ]. Upon his first trial Grill was found guilty of murder in the first degree with punishment fixed at life imprisonment. Upon appeal taken he was granted

There have not been brought to this court’s attention, and doubtless no such cases can be found, where a dismissal of the indictment as to one or more degrees included therein has been made and jurisdiction retained as to the other degrees. Such is not the system of this state and there is no authority of law for splitting up causes in this way. It would bring about confusion, but what is more important, such a procedure can have, under the code, which specially prescribes the powers and duty of courts and juries with

The case of People v. Sugarman and Passarello, 80 Cal. App. 321 [ 251 Pac. 949 ], is cited as a precedent sustaining respondent’s contention. In that ease the defendants were charged with burglary. The jury found them guilty of burglary of the first degree, but the court “decided that the offense was of the second degree and sentenced them accordingly.” No California ease was cited sustaining the court’s decision. A petition for a hearing by this court was not requested. That case presented an appeal taken from the judgment pronouncing the defendants guilty of the lesser offense. No writ, as here, was sought directing the court to act upon the verdict before it. Had such a remedy been invoked we do not see how the trial court could have avoided the force of the statute. However, murder is placed in a class by itself. Those who deliberately take human life must answer as to the degree of crime and the punishment that shall be imposed upon them to a jury of their peers. (Sec. 190, Pen Code.) The authorities are so uniform and numerous in this state sustaining the view we have taken of the main questions presented that we deem it unnecessary to review the authorities from other jurisdictions which, it is claimed, support respondent.

[5] The defendant in the instant case has not been arraigned for sentence upon the verdict rendered by the jury convicting him. Neither has sentence nor judgment been pronounced by the court upon said verdict. The court positively refuses to recognize the verdict received by it or to pronounce judgment thereon or take any steps whatever upon the verdict rendered, as shown by the return herein. The court was without jurisdiction to pronounce judgment upon an assumed verdict of murder in the second degree and the judgment so pronounced must be annulled. We are of the opinion that petitioner has no plain, speedy, or adequate relief in the premises. (Sec. 1068, Code Civ. Proc.) It appearing that the court without any lawful cause refuses to pronounce judgment upon the verdict of the jury as rendered, or to take other legal or appropriate action thereunder or perform acts which the law specially enjoins upon said judge and court as a duty resulting from the office which said judge occupies, it is ordered that a writ of

The peremptory writ will issue.

Richards, J., Shenk, J., Preston, J., Langdon, J., Curtis, J., and Waste, C. J., concurred.