Beggs

An alternative writ of mandate was issued to the superior court upon application of petitioner, who had made a request to the superior court for the suspension of the execution of sentence, such request having been denied upon the ground of lack of jurisdiction in that court to entertain it.

The sole question before this court relates to the power of the superior court to act upon a petition for suspension of sentence pronounced upon a convicted person after affirmance of the judgment of conviction upon appeal.

Petitioner was convicted of the crime of extortion. Upon appeal the judgment was affirmed. Upon the going down of the remittitur he made application, under section 1203 of the Penal Code, for suspension of the execution of the sentence, and his counsel here contend that under the terms of that section the superior court has jurisdiction to determine, upon the merits, whether or not sentence shall be suspended at anytime between the conviction of a defendant and his surrender by the sheriff to the warden of the penitentiary in which the commitment as originally made directed his imprisonment.

Section 1203 of the Penal Code, by reason of which, as petitioner asserts, he is…

I dissent. I cannot agree with the conclusion arrived at by Mr. Justice Melvin, that proceedings for probation must be initiated by or on behalf of the convicted person before the time of pronouncing judgment, and must be acted upon by the trial court prior to or at the time of pronouncing such judgment; and that its jurisdiction to extend the merciful intent and provisions of section 1203 of the Penal Code to a defendant ceases at the time such judgment is pronounced. Sectiop 1203 does not expressly so declare: The opening paragraph of said section empowers the trial court “of its own motion” and at any time after plea or verdict of guilty so long as it retains jurisdiction of the case, and whenever there are circumstances in mitigation of the punishment, either by the report of the probation officer or otherwise, which show that the ends of justice would be subserved thereby to place the defendant upon probation. The foregoing is the plain intent of this section of the Penal Code as expressed in its opening paragraph, and this intent should be given effect in harmony with the beneficent purpose for which the probation law was enacted, unless this intent and the time of its…

I concur in the judgment on the ground that the express \provisions of section 1263 of the Penal Code, require, in the event of an affirmance, that “the original judgment must be enforced. ’ ’ The judgment required that the petitioner he imprisoned in the state’s prison. The purpose of suspending the execution and granting probation would be to secure the reform of the petitioner, and the consequent dismissal of the charge against him. (Sec. 1203, subd. 5.) In that event he would never have the judgment enforced against him.