People v. Patrich , 118 Cal. 332 ( 1897 )

McFARLAND, J.

The defendant was charged with burglary, was convicted of burglary in the second degree, and was sentenced to suffer imprisonment of five years in state prison. lie appealed from the judgment upon the judgment-roll alone.

On June 22, 1892, after the verdict of guilty had been rendered, the court entered the following order: “In this cause the defendant having been heretofore convicted of the crime of burglary, and this being the day set for sentence, therefore, upon motion of counsel for defendant, and the district attorney consenting thereto, it is hereby ordered that sentence in this cause be and the same is hereby suspended, and the defendant herein is hereby allowed to ship upon the United States ship ‘Independence/ a deep water vessel, and it is hereby ordered that the sheriff of the city and county of San Francisco be and is ordered to make a due return to this court.” On June 29, 1893, the sheriff solemnly made a return—as though he had been executing a judgment—as follows: “I hereby certify that I delivered the prisoner, George' Patrick, on board the receiving ship ‘Independence/ at Mare Island. He passed a satisfactory examination and shipped as landsman under his true name, Gus O’Doule. 1 remained on board until he donned his uniform of a sailor in United States navy.” Nothing further concerning appellant appears until April 13, 1896, when a bench warrant was issued for his arrest. Afterward the order of “suspension of judgment” was set aside, and on April 25, 1896, the appellant came into court, was duly informed of the prior proceedings in the case, and judgment was entered against him of imprisonment as here-inaboTe stated.

Appellant’s counsel contends “that the order of deportation having been complied with, that the court lost jurisdiction to impose the said sentence of imprisonment,” and that “as the defendant had complied with the order of the court made in 1893, -the court lost jurisdiction to vacate the order of suspension in 1896, and order the defendant to prison.” But there was no order of deportation; the court could not have made any such order, and the part of the record above quoted of the date of June 22, 1893, does not purport to be an order of deportation. What is said there about allowing the appellant to ship upon the United States ship “Independence,” and the return of the sheriff that he had so shipped, is of no legal value or consequence whatever. In substance it is a mere order that sentence be suspended until the further order of the court; and said order having been made “upon motion” of the defendant, he cannot be heard to complain of it.

The judgment appealed from is affirmed.

Temple, J., and Henshaw, J., concurred.

Hearing in Bank denied.