Grant

[1] The only appeal we can consider in this case is the appeal from the order of the court denying the defendant's application to vacate and set aside its judgment, and his application for leave to withdraw his plea of guilty, which application was made by defendant after judgment on his plea of guilty and after the judgment of the trial court sentencing him to serve in the penitentiary. That such an appeal will lie is directly supported by the decision of our supreme court in the case of People v. Schwarz and Wallington, dated June 3, 1927, 201 Cal. 309 [ 257 P. 71 ]. [2] In support of this application it appears that defendant contends that his plea of guilty was induced by his being informed by his counsel, in the presence of and by ostensible authority of a representative of the district attorney's office, that the sentence would be "from one Dollar up." After the plea of guilty, the defendant was sentenced to imprisonment in the state prison by the trial court. This was done by the trial court without any evidence whatsoever as to the gravity of the offense actually committed in order to determine whether the punishment should be by imprisonment in the penitentiary or county…

The petition for rehearing filed herein by the attorney-general is denied. The facts and circumstances of the particular case, as we view them, were much more harsh and more advantage was taken of the defendant than in the case of Wallington, reported in People v. Schwarz and Wallington, 201 Cal. 309 [ 257 P. 71 ]. From the record in the instant case, we assume that the representative of the district attorney's office was Mr. Redwine, *Page 63 a deputy district attorney, because immediately upon the occurrence referred to, he appeared for the district attorney's office in the matter of accepting the plea, which was obtained immediately after the statement "from one dollar up" was made. We do not intend to enlarge and we do not believe that we have enlarged the scope of the case of People v. Schwarz and Wallington, supra. In that case the defendant was guilty of a very serious crime, and her punishment therefor, in comparison with that of defendant herein, was a very mild punishment for the crime committed. In the instant case, the only crime committed by the defendant, under the admitted facts, was that he failed to give the number of his automobile after he had seen one of the…