People v. Sonoqui

PRESTON, J.

This is an appeal from a judgment of conviction and from order denying motion for new trial; also from order denying motion in arrest of judgment. Our conclusion upon the question of the jurisdiction of the court below to try this cause, and enter the judgment complained of on the verdict, will dispose of the appeal.

Defendants were previously put to trial on the present charge of murder and were, on December 23, 1932, convicted in said court. On January 3, 1933, this motion for new trial was granted by the trial court upon the ground of insufficiency of the evidence. Immediately following this ruling, the People announced their appeal from the order and caused proper notice thereof to be entered in the minutes of the court. (Pen. Code, sec. 1238, subd. 3.) Thereafter, and on February 11, 1933, the District Court of Appeal, having jurisdiction of the appeal, upon motion of the district attorney, with consent of the attorney for defendants, entered its order dismissing said appeal. No attempt was made to secure a

remittitur.

A certified copy of the order was procured and, on February 14, 1933, filed in the court below. On February 16, 1933, four days after entry of the order of dismissal, defendants were again put on trial and thereafter convicted of murder in the first degree. On March 7, 1933, at the time fixed for pronouncing judgment, defendants moved in arrest of judgment on the ground that the court was without jurisdiction to enter same, inasmuch as the order dismissing the former appeal of the People had not become final nor had a

remittitur

issued thereon.

The said order of dismissal was tantamount to a judgment of affirmance of the order granting a new trial. (Sec. 955, Code Civ. Proc.;

Rowland

v.

Kreyenhagen,

24

[366]

Cal. 52;

Spinetti