Opinion
Hearing Granted by Supreme Court May 21, 1928.
Appeal from Superior Court, Los Angeles County; Eliot Craig, Judge.
Proceedings by the People against M. M. Gordon. From an adverse judgment, defendant appeals. Appeal dismissed. COUNSEL
Laird L. Neal and Burke & Catlin, all of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.
OPINION
THOMPSON, J.
The respondent has made a motion to dismiss the appeal in this case on the ground that appellant "failed" to "present an application to the trial court stating in general terms the grounds of the appeal and the points upon which appellant relies, and" designating "what portions of the phonographic reporter’s notes it will be necessary to have transcribed" within five days from the time the appeal was taken, as prescribed in section 1247 of the Penal Code. The record discloses that appellant’s motion for a new trial was denied, judgment pronounced, and an appeal taken from the order and judgment on November 16, 1927. The record also shows that the statement required was not filed until November 29, 1927. We have recently held that section 1247 of the Penal Code, which was expressly repealed at the legislative session of 1927, is still in force for a limited time, notwithstanding the repeal, by virtue of the saving clause in section 1246 of the Penal Code as amended in 1927 (St. 1927, p. 1047), which says in effect that until rules are promulgated by the judicial council "the time and manner" of making up and filing the record on appeal "provided by statutes in force on January 1, 1927, shall govern." People v. McClellan (Cal.App.) 263 P. 841; People v. Pierce (Cal.App.) 264 P. 519. It is also there held, following a long line of authorities, that the provisions of section 1247 requiring a dismissal for failure to file the statement within the time, are mandatory.
In this case appellant seeks to avoid the provision of section 1247 that in the event of failure to file the statement "the appeal is wholly ineffectual and shall be deemed dismissed," by calling our attention to the order which the court may and did make under the provisions of that section, directing the phonographic reporter to transcribe his notes, in which order it is recited that the statement of the grounds of appeal had been filed. This order is dated November 21, 1927, and filed November 29, 1927, or filed on the same date on which the statement was filed. It is not necessary for us to indulge in any presumptions either of error, oversight, or omission. The clerk’s transcript, which discloses that the statement and order were both filed November 29, 1927, is certified to contain "full, true, and correct copies" of the documents therein enumerated, "together with the indorsements on said papers and documents as the same now appear on file in my office." The record must prevail over a mere recital in the order. With respect to a similar contention in the case of Downing v. Le Du, 82 Cal. 471, 23 P. 202, the Supreme Court said:
"The bill of exceptions shows that she demanded a jury trial, which was denied her, and she excepted. *** The respondent contends that she waived a jury trial, and it is so recited in the findings. But there is nothing in the record showing such waiver, and the recital in the findings that there was a waiver cannot prevail against the showing in the bill of exceptions that she demanded a jury and it was denied."
It is obvious that there is more reason for holding that the record prevails in the instant action than in the one from which we have just quoted because the record here establishes a single patent fact, while in the former the jury might conceivably have been waived subsequent to demand and denial. We adhere to the rule there announced.
The appellant also insists that there is no certificate of the clerk of the trial court to the fact that the statement was not filed within the time allowed; that such certificate is contemplated by section 2 of rule 6 governing the practice in the Supreme Court and District Courts of Appeal. Apparently he would have the clerk in a separate document, confined solely to the statement of the grounds of appeal and the dates relating thereto, do all over again what he has already furnished and certified in the transcript. His certificate already covers all of the facts which he might cover in a separate instrument, and it is axiomatic that the law and the courts require neither useless nor absurd acts. The rule is fully complied with in this instance.
The appellant also argues that the saving clause in section 1246 of the Penal Code is violative of that portion of section 24 of article 4 of the state Constitution, which provides that:
"No law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be re-enacted and published at length as revised or amended. ***"
It is apparent, if he be correct in his assertion, that prior to the time the judicial council shall promulgate rules governing the time and manner of making up and filing the record on appeal in criminal cases there is no method whatsoever provided by law, and that the statutes relating thereto have been repealed. This entire subject was covered in one act of the Legislature entitled:
"An act to amend sections one thousand two hundred forty-six and one thousand two hundred fifty-two of the Penal Code, to add a new section to the Penal Code to be numbered one thousand two hundred fifty-six, and to repeal sections one thousand two hundred forty-seven, one thousand two hundred forty-seven a, one thousand two hundred forty-seven b, one thousand two hundred forty-seven c, and one thousand two hundred forty-seven d, of the Penal Code, relating to appeals in criminal cases." Stats. and Amendments 1927, p. 1047.
There can be no conclusion other than that the Legislature in abolishing by one act the method provided for preparing and filing the record on appeal and at the same time providing a manner in which a new method might be set up, saw the necessity of restricting the time when the repealing portion of the act should take effect. In effect it said this portion of the one act shall not take effect until the judicial council shall promulgate its rules. It is said in Lewis’ Sutherland Statutory Construction (2d Ed.) section 354:
"A saving clause is, like a proviso, an exemption of a special thing out of the general things mentioned in the statute. Its name implies such exemption to preserve from loss or destruction. It is generally employed to restrict repealing acts; to continue repealed acts in force as to existing powers, inchoate rights, penalties incurred, and pending proceedings, depending on the repealed statute. An absolute repeal puts an end to such rights, powers and proceedings, and discharges such penalties. To preserve them to any extent or for any purposes requires a special provision in the repealing act or existing statute having a saving effect."
Viewed in this light, the sections were neither revised nor amended, but the taking effect of the repeal was stayed by the saving clause until the rules were promulgated. This does no violence to the spirit or intent of the constitutional provision.
Appeal dismissed.
We concur: WORKS, P. J.; CRAIG, J.