People v. Lanham

THOMPSON, J.

—The defendant has attempted to appeal from an order denying his motion to vacate a judgment of conviction of the crime of attempt to commit rape and violation of the provisions of section 288 of the Penal Code. On appeal the judgment of conviction which was rendered September 6, 1933, was affirmed.

(People

v.

Lanham,

137 Cal. App. 737 [31 Pac. (2d) 410].) Three years after the judgment of conviction was rendered the defendant filed and presented to the trial court a motion to set the judgment aside on the ground that the court was without jurisdiction to pronounce judgment for the reason that the jury which tried the cause failed to determine in its verdict whether the defendant was to be punished by imprisonment in the state prison or in the county jail pursuant to the requirement of section 264 of the Penal Code. That motion to vacate the judgment was heard and denied by the court on October 19, 1936. A purported written notice of appeal from that order was subsequently filed by the defendant, although the record does not show when it was filed.

The record on appeal in this ease does not contain a copy of the information, the verdict of the jury or the judgment of conviction. It merely contains a copy of the written motion to vacate the judgment, the minute order denying that motion and the purported notice of appeal.

The record on appeal fails to conform to the requirements of rule II, section 2, applying to appeals in criminal cases, of the Rules for the Supreme Court and District Courts of Appeal. The appeal is defective and ineffectual.

(People

v.

Calkins,

8 Cal. App. (2d) 251 [47 Pac. (2d) 544];

People

v.

Ramirez,

139 Cal. App. 380 [33 Pac. (2d) 848].)

It is true that an appeal lies under section 1239 of the Penal Code from an order refusing to vacate the judgment.

(People

v.

Schwarz,