The following opinion was prepared by the late Mr. Presiding Justice Crail and is adopted and published as the opinion of the court.

The defendant and a codefendant were charged with the crime of burglary, to which they pleaded “not guilty”. Two months later each defendant changed his plea of “not guilty” to “guilty of second degree burglary” and filed applications for probation. Probation was denied and the defendant was sentenced to San Quentin. Thereafter the defendant moved to vacate or modify the judgment, which was denied, and it is from this order the appeal is taken.

In support of his motion the defendant filed an affidavit in which he said that prior to the time of pleading “guilty” he had been promised a jail sentence by certain officers of the police force, and in which he further said, “We talked over our affairs and the recoveries I had and was making, and many times I asked Officers Quinn and Curtis if I was going to get a jail sentence and they said yes. At this time one of my attorneys was Mr. A. Benjamin. He was present at some of these meetings with Officers Quinn and Curtis, when these officers promised to explain to the district attorney and the court about my helping to make these recoveries, and as well, that I had been promised a County Jail sentence. At the time my plea was entered I did so because I was relying on this particular advice and would not have done so had I not been promised that I would get a jail sentence with or without probation. At many and at different times and at the last, I did believe that this was the sentence I would receive and I would not have made the plea that I did make had I not relied on these promises, ...”

The defendant relies upon the case of People v. Schwarz, 201 Cal. 309, 314 [ 257 Pac. 71 ], and the cases therein cited, and in that case the court said: “It may be stated from the above authorities that it is now well settled in this state that where on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty and of reassuming the situation occupied by him before a plea of any kind was entered.” It should be noted, however, that the court in the same paragraph also says, “that this exceptional remedy applies only where no trial has been had on the merits and only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes. ’ ’

At the hearing of the motion to set aside the judgment the following proceedings, among others, were had:

It thus appears obvious that at the time the defendant changed his plea from “not guilty’’ to “guilty’’ that there was no assurance given the defendant or any inference given to him that the court would sentence the defendant merely to the county jail, and that he knew that if he entered a plea of “guilty” it was entirely up to the court what sentence he was going to get, and the order must be affirmed.

Another thing worthy of note is that there is not a word in the defendant’s affidavit nor in the defendant’s testimony before the court to indicate that defendant was not guilty of the charge to which he pleaded guilty or that a trial would result in his acquittal. “The exceptional remedy above referred to was not designed to enable the guilty to escape punishment, but to purify and keep pure the administration of justice, and the same may be utilized upon only a strong and convincing showing of the deprivation of legal rights by extrinsic causes.” (People v. Gottlieb, 25 Cal. App. (2d) 411, 415 [ 77 Pac. (2d) 489 ].)

The order is affirmed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on June 21, 1939, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 10, 1939.