In Re Hampton

In this proceeding (wrongly entitled People v. Hampton), a writ of habeas corpus was issued out of the supreme court- and made returnable in this court.

Upon an information which charged Hampton with the crime of murder, he was found guilty of the crime of manslaughter. On appeal from the judgment of conviction, that judgment was reversed by this court ( 96 Cal. App. 157 [ 273 Pac. 854 ]). The judgment of reversal did not contain any order for a-new trial, and there was no appeal from any order denying motion for new trial. But although the judgment of reversal did not order a new trial, this court did not direct that the defendant be discharged from custody. When the remittitur had been received in the superior court of Santa Barbara County, where the action was pending, that court overruled defendant’s objections to further trial and retained him in custody awaiting another trial of the action. He now claims the right to be discharged from the custody of the sheriff.

Section 1260 of the Penal Code provides that in rendering judgment upon appeal the court may “reverse, affirm, or modify the judgment or order appealed from, . . . and may, if proper, order a new trial.” Section…