People v. Flohr

MARKS, J.

By an amended information, filed on March 5, 1937, defendant and another were charged with “a felony, to wit: ROBBERY in that on or about the 23rd day of February, 1937, in the County of Fresno, State of California, they did, while armed with a deadly weapon, to-wit: a gun, rob one W. L. McDonald”. Defendant was tried and found guilty. Judgment was pronounced upon him on March 27, 1937. No appeal was taken from that judgment.

On August 26, 1938, defendant filed a motion to vacate and set aside the judgment. His motion was denied and this appeal was taken from the order denying it. As grounds for reversal of the order, defendant urges that: (1) the

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amended information failed to charge him with a public pífense ; (2) that the verdict was void as (a) it did not find the degree of the crime of which he was convicted, and (b) no separate verdict on the question of his being armed "was returned (sec. 1158a, Pen. Code) ; and (3) that consequently the judgment pronounced upon him was void.

The attorney-general cites

People

v.

Bowles,

135 Cal. App. 514 [27 Pac. (2d) 411], and urges that the order denying defendant's motion is not appealable. It is obvious that all of the grounds urged in support of the motion to vacate the judgment were proper grounds to urge on an appeal from the judgment. In discussing the propriety of considering such grounds on an appeal from an order refusing to vacate the judgment, this court, in the Bowles ease, said:

“It is the contention of appellant upon this appeal that the judgment rendered on April 8, 1929, is a void judgment and was not rendered valid by its affirmance and that, since it is void upon its face, it is subject to attack, direct or collateral, at any time. Numerous authorities support this established principle. It is also pointed out that a motion to vacate a void judgment is a proper mode of attack and that an appeal lies from ¿n order refusing to vacate such a judgment. These contentions based upon established principles are correct. However, it is equally well established that, although a defendant in a criminal action is specifically permitted to appeal from an order made after judgment, affecting his substantial rights (subd. 3, sec. 1237, Pen. Code), 1 ordinarily a party who has a right to appeal from a judgment or order is not allowed to move to set it aside and then appeal from an order denying his motion’ (8 Cal. Jur., p. 495, see. 510). This latter rule is directly applicable to the situation here presented. The appellant could have properly presented, on his appeal from the judgment, precisely the same questions which he now seeks to present on his appeal from the court’s order refusing to vacate the judgment and obviously could have much sooner obtained whatever relief he was entitled to receive. The effect of sustaining appellant’s contentions on this appeal ‘would be virtually allowing two appeals from the same ruling, and would, in some eases, have the effect of extending the time for appealing’ (De