I dissent.
I agree with the contention of the attorney-general that sections 1191 and 1202 of the Penal Code, as amended in 1909, have no application so far as the time within which judgment must be rendered after the reversal of an order arresting judgment is concerned. It is true that the purpose of the amendment is to secure expedition in the disposal of cases and that the conclusion announced by the *Page 148 district court of appeal would tend to expedite proceedings after reversal, but as the provisions refer specifically to the remedies and the sequence of and the time within which they may be availed of after plea or verdict of guilty and no reference is made to proceedings after reversal, I think there is no statutory warrant for the construction given to the amended provisions.
The remedies provided in section 1191 which have any pertinency here are the motions for a new trial and arrest of judgment, which must be decided within fifteen days after plea or verdict, and an application for probation for the determination of which the court is allowed twenty additional days, and, on motion of defendant, this may be extended to ninety days.
In this case the first two of the remedies were exhausted. The defendant was still entitled to apply for probation. It is for this reason the order of reversal in the first appeal did not direct the superior court to proceed to judgment but remanded the cause for further proceedings in contemplation of sections 1191 and 1202.
But even if the time schedule prescribed in the statute does not apply after reversal of an order arresting judgment, the decision of the district court of appeal is based on an erroneous theory. It is because of the confusion to which this case may hereafter give rise that I deem it advisable to state my views on the subject.
It appears from the record on the original appeal that the verdict was rendered on November 25, 1919. On that day the case was set down for November 28th for judgment and sentence. When the case came up on November 28th defendant interposed his motions for a new trial and in arrest of judgment. The case was thereupon continued to December 1st, then to December 5th, and finally to December 6th, each time for the hearing of said motions and for judgment and sentence. On the latter date the motion for a new trial was denied and the motion in arrest of judgment granted.
This consumed eleven out of the fifteen days which might have been appropriated under section 1191, but as the trial court did not find it necessary to use the fifteen days, no time remained, so far as those two remedies were concerned, after the order appealed from was made. The appeal from *Page 149 the order granting the motion in arrest of judgment was taken on December 6th. This, of course, had the legal effect of suspending jurisdiction in the superior court until theremittitur was filed.
It follows that when the remittitur was filed and the court acquired jurisdiction over the person of the defendant and relief was not sought by probation, judgment should have been rendered forthwith. Hence, since judgment was not rendered on the first day the defendant appeared after the filing of theremittitur the court was without jurisdiction to pronounce judgment and should have granted a new trial.
The theory of the district court of appeal is that on the filing of the remittitur the verdict "should be considered as being given new life as of the date" of such filing and that a new period of five days within which the case must be set down for judgment thereby created under section 1191, I find no warrant for this interpretation in the statute. Not only the verdict, but all the proceedings subsequent to verdict, including the motions for a new trial and in arrest of judgment, were revived on the filing of the remittitur and determined the course the court should pursue. The maximum of five days referred to in the first paragraph of section 1191 fixes the time the court must appoint for pronouncing judgment after a plea or verdict of guilty or a plea of former conviction or acquittal, or once in jeopardy. That time may be extended for the indicated purposes and no other. Except for probation the time provided in section 1191 had been exhausted when the appeal was taken. There was no more authority under that section to allow five days for rendering judgment after the filing of the remittitur and the appearance of the defendant than there would have been for granting any other number of days. To hold there was such authority is to add to the terms of the statute.
It seems to me the proper procedure would have been to arraign the defendant, review the proceedings up to date, and then inquire of him whether he had any legal cause to show why judgment should not be rendered. In that situation he might have asked for probation, in which event the case would probably have been continued. But as he did not, judgment should at once have been pronounced. *Page 150