Opinion
Appeal from a judgment of the Superior Court of Santa Clara County.
COUNSEL:
M. E. Power, and C. L. Witten, for Appellant.
Attorney-General Marshall, Howell C. Moore, and D. W. Burchard, for Respondent.
JUDGES: In Bank. McKee, J. Morrison, C. J., Thornton, J., Sharpstein, J., McKinstry, J., and Myrick, J., concurred. Ross, J., concurred in the judgment.
OPINION
McKEE, Judge
[11 P. 756] This is an appeal from a judgment of conviction of murder in the first degree.
It is assigned as error that the judgment pronounced against the defendant is not in conformity with section 1200 of the Penal Code, which reads: "When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the charge against him, and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him."
According to this law, a defendant, under conviction in a criminal action, before judgment can be legally pronounced against him, is entitled to be informed of the nature of the charge against him, and of the verdict of conviction upon which the sentence of the law has to be pronounced, so that he may have an opportunity of exercising his right to show cause against pronouncing judgment. If the court should pronounce judgment without giving defendant the required information in the mode prescribed by the law, the judgment pronounced would be irregular and voidable. The right of a defendant under conviction to be informed before judgment of the proceedings against him which have resulted in his conviction is therefore a substantial right.
But there was no denial of the right in this case. The judgment recites:
" The district attorney, with the defendant and his counsel, M. E. Power and C. L. Witten, Esqs., came into court. The defendant was duly informed by the court of the information presented against him for the crime of murder on the twenty-seventh day of October, 1885, of his arraignment and plea of not guilty, of his trial, and the verdict of the jury on the twenty-seventh day of January, 1886, 'guilty of murder in the first degree.' The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which he replies that he has none. And no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment.
" That whereas the said Jung Qung Sing having been duly convicted in this court of the crime of murder in the first degree, it is therefore ordered, adjudged, and decreed that judgment of death be and is hereby pronounced and entered against the said defendant, Jung Qung Sing, and that he be by the sheriff of Santa Clara County, at the place provided by law, hanged by the neck until he be dead. The defendant was then remanded to custody."
It is said these recitals are insufficient to show that the defendant was properly informed of the nature of the charge against him, or that he was asked if he had any cause to show why judgment should not be pronounced against him. But the statement by the court of the specific crime with which defendant was charged, and of which he had been convicted, was sufficiently explicit as to the nature of the charge and the conviction, as preliminary to the question by which the defendant was asked if he had any legal cause to show why judgment should not be pronounced. Unless there exist some legal cause against pronouncing judgment, the court was bound to proceed. (Pen. Code, secs. 1201, 1202.) The question which the court asked of the defendant was in the exact form prescribed by the law. And the judgment pronounced is according to law.
[11 P. 757] The next assignment of error is, that the record nowhere states that the defendant was present in court when the verdict was received.
There is no doubt that in case of felony a verdict received in the absence of the defendant would be void. (Penal Code, sec. 1148; People v. Beauchamp , 49 Cal. 41.) The defendant must therefore be personally present when the jury render their verdict. But the record of the case shows that "the parties" and their attorneys appeared at every stage of the proceedings from the day that the cause was called for trial until the verdict was received and the jury discharged. And as the "parties" to a criminal action are the people on the one hand and the defendant on the other, it must be presumed that the defendant was personally present. Besides, the entry on the minutes of the court as to the return of the verdict shows that when the verdict as announced was entered and read to the jury the court ordered the jury discharged, and the defendant remanded to the custody of the sheriff, which was done.
It is not claimed that the trial was had in the absence of the defendant. No motion for a new trial was made on that ground under section 1181 of the Penal Code. Moreover, the amended record, filed upon a suggestion of diminution of the record, shows conclusively that the defendant was personally present at all times during the trial of the cause; therefore the assignment of error is not true.
The motion to strike from the files the amended record must be denied and the judgment affirmed.
It is so ordered.