Opinion
Docket No. Crim. 3128.
August 6, 1928.
MOTION to dismiss appeal from a judgment of the Superior Court of Los Angeles County. Eliot Craig, Judge. Motion denied.
The facts are stated in the opinion of the court.
Laird L. Neal and Burke, Catlin Burke for Appellant.
U.S. Webb, Attorney-General, and James S. Howie, Deputy Attorney-General, for Respondent.
Motion to dismiss appeal for alleged failure to file, within the time required by Penal Code, section 1247, statement of grounds of appeal. [1] Judgment was imposed on defendant on November 16, 1927. On November 21, 1927, the court gave and made an order directing the preparation of clerk's and reporter's transcripts, which recited therein that the required statement above referred to had been made and filed as a part of the application therefor. On November 22d there was made and filed a second order confirming these proceedings, in that it directed that on the appeal the original exhibits might be used. It is true that the order for preparation of the transcripts was not marked filed until November 29th, and the same is true of said statement of grounds of appeal, but it is demonstrable from the record that the filing date should have been attached at least on November 21st, which was in due time. We are in such a situation not irrevocably committed to the filing date affixed by the clerk (2 Cal. Jur., p. 684, sec. 390; Duncan v. Times-Mirror Co., 109 Cal. 602 [42 P. 147]).
Motion denied.
Curtis, J., Richards, J., Shenk, J., Seawell, J., Waste, C.J., and Langdon, J., concurred.