Opinion
Crim. No. 1217.
September 15, 1924.
APPLICATION for Writ of Habeas Corpus to secure release from custody on ground of invalidity of judgment. Writ granted.
The defendant was charged with and convicted of the crime of robbery. Neither the information nor the verdict of the jury specified or fixed the degree of the crime. The judgment of the trial court was that the defendant be confined in the state penitentiary for an indeterminate term of not less than five years.
Ware Ware for Petitioner.
U.S. Webb, Attorney-General, Wm. F. Cleary, Deputy Attorney-General, and W. E. Roth, District Attorney, for Respondent.
[1] Upon the hearing of the application for a writ of habeas corpus in the above-entitled matter we are satisfied that the writ should issue upon the authority of the opinion of the district court of the third appellate district in the Matter of the Application of Colford, ante, p. 308 [ 229 P. 63], and that the defendant John Davis, in whose behalf said petition was filed, should be returned to the superior court of the county of Butte and tried anew.
It is therefore ordered that the warden of the state prison at San Quentin deliver John Davis into the custody of the sheriff of the county of Butte for the purpose of a new trial.
It is further ordered that the clerk of this court forward a copy of this order to the clerk of the district court of appeal of the state of California, third appellate district.
All the Justices concurred.