Opinion
Docket No. 1063.
December 4, 1928.
APPEAL from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. Thomas H. Selvage, Judge. Reversed.
The facts are stated in the opinion of the court.
Blaine McGowan for Appellant.
U.S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.
THE COURT.
The defendant was charged, under subdivision one of section 261 of the Penal Code, with the crime of rape. He was found "guilty as charged in the information" and was thereupon sentenced to imprisonment in the state prison. He has appealed from the judgment and the order denying his motion for a new trial.
[1] The court failed to instruct the jury "to recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison," as provided by section 264 of the Penal Code, but instructed the jury that "the question of punishment is one exclusively for the court and with which a jury has no concern and which a jury has no right to consider." This was prejudicial error requiring a reversal. ( People v. Currie, 93 Cal.App. 544 [ 269 P. 770]; People v. Sachau, 78 Cal.App. 702 [ 248 P. 960]; People v. Rambaud, 78 Cal.App. 685 [ 248 P. 954].)
The judgment and the order are reversed and a new trial ordered.