Andrich

These defendants, together with one Oreb, were by the information charged with the crime of grand theft in that they did wilfully, etc., steal a bovine animal, of the personal property of the Santa Catalina Island Company. To this information they pleaded guilty and applied for probation. In denying these applications for probation and in sentencing appellants to imprisonment in the state prison at San Quentin, the court based its action upon the sole ground that the probation law as found in section 1203 of the Penal Code, does not authorize, and in fact prohibits, probation in this ease. In killing the steer which was stolen by the defendants, and as a part of such stealing, they used a rifle and shotgun. The judge stated that if it were not for the above-mentioned provisions of the probation law he would have admitted the defendants to probation.

In section 1203 of the Penal Code it is provided that “probation shall not be. granted to any defendant who shall have been convicted of . . . grand theft . . . and who at the time of the perpetration of said crime . . . was armed with a deadly weapon (unless at the time he had a lawful right to carry the same), nor to a defendant who…