Opinion
Appeal from a judgment of conviction, and from an order denying a new trial, and from other orders, in the Superior Court of the City and County of San Francisco. Freelon, J.
COUNSEL
Darwin & Murphy, for Appellant.
A. L. Hart, Attorney General, for Respondent.
JUDGES: Ross, J. Morrison, C. J., Sharpstein, Myrick, McKinstry, Thornton, and McKee, JJ., concurred.
OPINION
ROSS, Judge
In Bank. The defendant was convicted of the crime of murder in the first degree. He made a motion for a new trial which was denied. Afterwards the trial Court pronounced judgment of death against him. Through some inadvertence in the Court below the judgment was not entered in the minutes of the Court. The defendant appealed to this Court from the order denying his motion for a new trial and attempted to appeal from the judgment pronounced against him. On the hearing of the appeal this Court affirmed, on the merits, the order denying the new trial, and dismissed the appeal from the judgment because there was no judgment in the record. After the filing of the remittitur from this Court in the Court below, that Court made a nunc pro tunc order directing the judgment to be entered in the minutes as of the date of its rendition; and it was so entered. The defendant excepted to this action of the Court, and asked to be permitted to move for a new trial on certain specified grounds. This motion the Court refused to entertain, because one such motion had already been made and determined. Thereupon the Court made an order fixing the day for the execution of the judgment.
It is claimed on the part of defendant that he was entitled to be present when the order for his execution was made. So he was. ( § 1227, Penal Code; People v. Sprague , 54 Cal. 92.) But it does not appear from the record that he was not present, and in support of the regularity of the proceedings of the Court below the presumption is indulged that he was. The bill of exceptions recites: " Be it also remembered that after the order of the entry of the said judgment nunc pro tunc, and before the order made that the Sheriff execute the judgment on the second day of September, 1881, the Court did not call on the defendant for any legal reasons against the execution of said judgment, and did not inquire into the facts, nor into any facts, but made said order without giving defendant any opportunity to show any cause against the same, and no cause was shown against the said order, nor passed upon by said Court, and that the defendant, by his attorney, then and there excepted to said order, and all parts of the same, and his said exceptions were duly allowed." If the defendant was not personally present, the bill of exceptions ought to have said so. Presuming, as we must, that he was present, if there were any facts needing inquiry by the Court, he ought to have presented them. The purpose of Section 1227 of the Penal Code is in the nature of an order to show cause, and where any reason exists why the judgment of the Court should not be executed, it is the duty of the defendant, when brought into Court, to present it. The record discloses no offer on his part to show any such cause. There was no error on the part of the Court in refusing to entertain a second motion for a new trial.
Judgment and orders affirmed.