Clay

The defendant was charged with the murder of her illegitimate grandson. Within two hours of the birth of the child, she placed the child in a towel in a paper sack. She then put the child in a trash container, poured lighter fluid over him, and ignited the lighter fluid. There is no trash pick-up where defendant lived; trash is disposed of by burning. She presented evidence that she believed the child was dead before she placed him in the trash and further evidence that she [the defendant] had a mental, defect and was of limited intelligence.

The jury found her guilty of second degree murder. The trial court reduced the offense to “non-statutory” voluntary manslaughter and sent her to prison. She was returned to court under the provisions of Penal Code, section 1168, with a recommendation from the prison authorities that she be placed on probation. The probation officer’s supplemental report also recommended probation. She had no previous history of delinquent behavior.

The district attorney opposed the granting of probation. The court was of the opinion that under these circumstances probation was prohibited by the provisions of Penal Code section 1203. It properly…