I concur in the judgment ordering the peremptory writ, but I cannot agree with the reasoning of the opinion that it was the intention of the legislature by the amendment of section 1203 of the Penal Code in 1927 (Stats. 1927, p. 1493), merely by omitting the words "before judgment and sentence," to vest power in the Superior Court to grant probation at any time, even after the affirmance of the judgment on appeal. When the phrase "before judgment and sentence" was stricken from the section in 1927 the language of the section in its immediate context was restored to the same condition obtaining when the Beggs case was decided. It must be presumed, therefore, that in adopting the language of the section in force when the Beggs case was decided the legislature intended to adopt the same with the construction placed thereon by the majority of this court in that case. "The familiar rule is that when there is a re-enactment of a statute in the same language, after a construction by the courts, the new statute is presumed to be intended to have the same effect as that previously given to its predecessors." (Lightner Min. Co. v.Lane, 161 Cal. 689, 700 [Ann. Cas. 1913C, 1093, 120 P. 771, 776]; Harris v. Barlow, 180 Cal. 142 [179 P. 682]; Dalton v. Lelande, 22 Cal.App. 481 [135 P. 54]; 23 Cal. Jur., pp. 783, 795, 796.)
The effect of the majority opinion is to emphasize and reiterate the doctrine of the dissenting opinion and overrule by indirection the majority opinion in the Beggs case. But I find it unnecessary to overrule that case, either by indirection or otherwise, for I find other changes in section *Page 632 1203 as redrafted in 1927 to indicate an intention to broaden the powers of the trial court in matters of probation, so as to accomplish the obviously beneficial result so greatly stressed in the opinion of Mr. Justice Richards. By the amendment in 1927 it was first declared in effect that the trial court should have power to fix the time when an application for probation should be heard and determined. It was provided that "the court, upon application of the defendant or of the people or upon its own motion, may summarily or at a time fixed, hear and determine . . . the matter of probation," and that "at said time or times fixed by the court, the court may hear and determine such application," with the limitations thereafter provided, none of which is applicable to this case. Assuming that there may be doubts as to the exact extent of the effect of the quoted language of the amendments, such doubts should be resolved in favor of an enlarged power, for the reason that the statute is remedial in its nature and should be liberally construed in favor of the application for probation. This construction does no violence to the judgment of the majority in the Beggs case, which appears to have been a correct solution of the problem on the then state of the law.