People v. Oppenheimer

THE COURT.

These cases have a common history, and all references to one relate to the other as well. We need begin back no further than January of 1955 when, after a trial by the court sitting without a jury, the defendant was convicted and sentenced, in each case, to serve five days (the sentences to run consecutively).' He immediately appealed and the judgments were affirmed in May 1955. Making a gesture toward taking the cases to the United States Supreme Court, the defendant secured a stay of execution until August 15, 1955. Later this stay was extended, indefinitely, but was vacated early in April, 1956, when it- became known that the defendant had failed to take the steps necessary to get a hearing before the United States Supreme Court. Without noting all the maneuvers that took place (affidavits of prejudice, appeal from “all void orders” etc., etc.) in March, 1956, we have a motion by the defendant to set aside or suspend the judgments, to grant probation and to reduce bail. This motion, as to the judgment, was based on grounds that were in existence, and relied upon, in the appeal from the judgment. It was denied by the trial court, and the order of denial affirmed on appeal in July, 1956. On August 6 the defendant was notified to appear in the trial court on August 13 to answer to the judgment. On August 9 he filed a notice of a new motion to vacate or suspend the judgments, based on the grounds that had become familiar. On August 10, a petition for removal to the federal court was filed in that court. This petition was denied August. 17, but meanwhile, August 13, the defendant failed to appear and his motion was denied in the municipal court, and his bail forfeited.

These cases are now before us on a notice of appeal, divided into two parts: “1. Defendant hereby appeals from the order

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of August 13, 1956, denying written motion to vacate judgments. ... 2. Defendant also appeals from the order of August 13, 1956, forfeiting his bail. ...”

We are dismissing the first of these appeals, the one from the order denying a motion that was a repetition of a motion, already made and denied, to set aside a judgment on grounds available and considered upon an appeal from the judgment. Compliance with the requirements of section 1008, Code of Civil Procedure, was lacking in the making of the last motion. The authority given by the section to punish for contempt for a violation of its terms is not the only result of a violation, but the motion should be denied, as it was in this case.

If a defendant may, by a motion to have a judgment set aside, lay the foundation for a new appeal that stays execution of the judgment until the appeal is heard and determined and may then repeat this process, with another stay, no defendant, so long as there is pen and paper at his command would ever have to serve a sentence imposed upon him. The State is not so impotent. The principle is thus stated in