In petitioning for a rehearing of this case, counsel for the defendant declares in his petition that in our former opinion we failed to consider and pass upon the point — the principal and controlling point in the case — that where judgment is not pronounced in a criminal case within the time limited by section 1191 of the Penal Code, the defendant is entitled to a new trial without regard to whether he has or has not consented to the delay.
It is further stated in the petition: "We again point out that in the case at bar a motion for a new trial was made which was not determined within fifteen days after verdict of guilty."
We thought that in our original opinion both the above-stated propositions were quite fully considered and a decision thereof arrived at and announced. In the hope of making ourselves clearer to counsel, however, we will here repeat what therein we held, as we still hold, that, under the ruling in the case of Rankin v. Superior Court, 157 Cal. 189, [106 P. 718], probation having been applied for in this case by the defendant, the trial court was authorized to pronounce judgment of sentence at any time within twenty-five days after the date of the verdict, without the consent to a postponement by the defendant, said number of days consisting of the five days within which time section 1191 provides that the court must impose sentence, where probation is not asked for, and the twenty days additional time to which the court, in the exercise of its discretion, may postpone the pronouncement of sentence, where probation is applied for. We further held that, according to the construction given section 1191 of said code in the Rankin case, the language thereof, "not less than two nor more than five days after the verdict or plea of guilty," means that the time so allowed for pronouncing judgment begins to run, not on the day the verdict is rendered or plea entered, but with the day immediately succeeding that upon which the verdict has been rendered or the plea of guilty entered. Under this construction and the facts of this case, the court did not of its own motion extend the time beyond the twenty-five days within which, under the circumstances, it was authorized to postpone the matter of sentence without the consent of the defendant. The further postponement, as we show in our original opinion, was, according to the record, with the consent of the defendant, and did not extend beyond *Page 94 the time to which the defendant is himself authorized by the statute to give legal consent.
As to the second point above suggested, we have only to say that in our former opinion we disposed of the proposition involved therein to our satisfaction. It would seem to be unnecessary to remark that, under the circumstances of this case, it obviously became, by reason of the application for probation. absolutely impossible for the court to have determined or disposed of the motion for a new trial within fifteen days after the date of the verdict. If it were necessary to hold that that provision was in all cases or under all circumstances to be strictly followed, then the whole section would involve the very exemplification of absurdity. So to hold would require it to be held that the question of probation would either have to be considered after a motion for a new trial was determined or not considered at all. Of course, the statute does not contemplate such a situation. The defendant, under the statute, is not only entitled to apply for probation and have that question determined before his motion for a new trial is heard and determined, but is entitled to move for a new trial, if he so chooses, and to have the motion determined, after probation is denied him. Section 1191 prescribes no particular time for disposing of such a motion after probation is denied, and we held in our original opinion, as we now hold, that in that case the court may take any reasonably necessary time for considering and disposing of the motion, and that in this case the time taken for such purpose did not involve an unreasonable delay.
Rehearing denied.
Chipman, P. J., and Burnett, 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 October 18, 1918, and the following opinion then rendered thereon:
THE COURT. — In denying the application for a hearing in this court we are not to be understood as holding that the pronouncing of judgment may be postponed beyond the lapse of the time prescribed in section 1191 of the Penal Code, as *Page 95 amended in 1911. The opinion sufficiently shows that it was not so postponed in this case.
The application for a hearing in this court after decision in the district court of appeal of the third appellate district is denied.