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District Court of Appeal, Second District, Division 1, California.

PEOPLE v. RYAN et al.*

Cr. 3177

Decided: May 17, 1939

S.W. Thompson, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Alberta Belford, Deputy Atty. Gen., for the People.

This is an appeal from a judgment of “Guilty” and from an order denying defendant's motion for a new trial.

Defendant and appellant Jack Ryan, together with two codefendants, was accused in an information filed by the district attorney with keeping a room with books and papers for the purpose of recording and registering bets upon the result of horse races, in violation of subdivision 2, section 337a, of the Penal Code.

At the trial in the superior court a jury was duly waived by the defendants and, by stipulation, the cause was submitted to the court upon the transcript of the evidence adduced at the preliminary hearing.

After the trial judge had read the transcript of the evidence, the following occurred: “The Court: Going over this record, I think the evidence is ample to warrant the conclusion that there has been a violation of Subdivision 3, Section 337a, as to the defendant Jack Ryan, and the defendant Jack Ryan will be found guilty. As to the other defendants, I think the evidence is insufficient to warrant a conviction, and they will be found not guilty.”

The official minutes of the court upon this matter, as prepared by the clerk on the same day, read as follows: “Cause having been heretofore submitted, the Court finds Defendant Ryan, ‘Guilty as charged in the information.’ ”

Appellant's contention that the judgment is defective because the defendant was adjudged guilty of an offense not alleged in the information is sustained by the record.

The respondent concedes that the record is as above noted, but argues that “There was only one offense charged in the information and that offense was a violation of Subsection 2 of Section 337a. There was no evidence in the record tending to show a violation of Subsection 3. The court could not have intended and did not intend to make any reference to Subsection 3. The word ‘three’ in place of the word ‘two’ is a patent defect on the face of the record. It may have been a slip of the tongue on the part of the judge or it may have been a slip of the pen on the part of the reporter. In either case, it was a mistake in the record of the proceedings and should be corrected by an order nunc pro tunc. The defendant was not misled. The comment passed by without the notice of the District Attorney, which is some indication that it may have been a mistake on the part of the reporter. It was not called to the court's attention by either counsel at the time so that it could be corrected. All of the proceedings had at the time, as reported on page 41 of the Reporter's Transcript indicate either that the mistake was not made by the Judge but by the reporter, or, that all parties so well understood the judge's intent, that the mistake passed unnoticed until it appeared in the Reporter's Transcript. The entire proceedings cannot be vacated upon such a small and patent phonetic or typographical error.” The contention in the foregoing argument that “There was no evidence in the record tending to show a violation of Subsection 3” is a matter of opinion.

Whether the conflict in the record should be regarded as a “small and patent phonetic or typographical error” depends upon the viewpoint. Moreover, in connection with the argument that “it was a mistake in the record of the proceedings and should be corrected by an order nunc pro tunc”, it is significant that no such correction has been made and it should be noted in that regard that the official reporter's transcript of the proceedings is certified, approved and signed by the trial judge.

The decision of the trial judge, in the absence of a jury, is the equivalent of the jury's verdict. Manifestly a judgment based upon a verdict finding the accused guilty of an offense not charged in the information is a void judgment.

In the presence of the doubt created by the state of the record herein, the judgment can be affirmed only on the basis of speculation, which, as grounds for any judicial decision, uniformly has been held to be insufficient.

For the foregoing reasons the judgment and the order denying the motion for a new trial are, and each of them is, reversed, and the cause is remanded for a new trial.

DORAN, Justice.

We concur: YORK, P.J.; WHITE, J.