Summary
In People v. Colon, 119 Cal. 668, [51 P. 1082], it was held that the proceedings specified in section 1240 must be taken to confer upon this court jurisdiction to hear and determine the appeal.
Summary of this case from People v. BrownOpinion
Department Two
APPEAL from a judgment of the Superior Court of Solano County and from an order denying a new trial. A. J. Buckler, Judge.
COUNSEL:
Coghlan & Harvey, for Appellant.
W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
JUDGES: Belcher, C. Haynes, C., and Britt, C., concurred. Henshaw, J., McFarland, J., Temple, J.
OPINION
BELCHER, Judge
The defendant was convicted of the crime of grand larceny, charged to have been committed on the eighth day of June, 1897, in the county of Solano, by feloniously stealing, taking, and carrying away from the person of one Charles Miller the sum of thirty-six dollars, lawful money of the United States. He moved for a new trial, upon the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt, and his motion was denied. Thereupon the court pronounced judgment that he be imprisoned in the state prison at Folsom for the period of one year.
In the transcript presented here no copy of any notice of appeal, is set out, and the only [51 P. 1083] reference to any such notice is that found in the certificate of the clerk of the court below attached to the transcript, in which he certifies "the foregoing to be full, true, and correct copies of the information," etc., "and also of the notice of appeal duly filed herein."
As the record contains no copy of any notice of appeal, and as it cannot therefore be seen from what the appeal was taken, or that the notice was ever served upon the attorney of the adverse party, the attorney general suggests that there is nothing before this court for its consideration, and asks that the appeal be dismissed.
Section 1240 of the Penal Code provides: "An appeal is taken by filing with the clerk of the court, in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party."
In People v. Phillips , 45 Cal. 44, it did not appear that any notice of appeal was filed or served, except by a recital in the bill of exceptions, in which it was stated that "a notice of appeal had been duly given." It was held that "a recital in a bill of exceptions that a notice of appeal has been served and filed is no evidence that an appeal has been taken"; and it was ordered that the submission be set aside and the cause stricken from the calendar.
In People v. Bell , 70 Cal. 33, it is said: "The transcript herein does not show that the notice of appeal was served on anyone. The law requires that it shall be served on the attorneys of the adverse party (Pen. Code, sec. 1240), and the transcript on appeal must show it. (Citing People v. Phillips, supra, and People v. Clark , 49 Cal. 455.) This not being the case, the appeal cannot be considered."
In view of the foregoing authorities the appeal in this case cannot be considered. It should therefore be dismissed.
For reasons given in the foregoing opinion the appeal is dismissed.