People v. Duncan

YORK, P. J.

Upon notice duly given, appellant on November 24, 1941, moved this court for an order for diminution of the record to the end that a transcript of the proceedings of his preliminary hearing be certified and made a part of the record on appeal. It appears from the record herein that appellant made his motion to the trial court for a dismissal of the cause under section 995 of the Penal Code, upon the ground that he was not properly committed before the committing magistrate, which question is now being presented on appeal to this court. Prior to the denial by the trial court of appellant’s motion for such dismissal, appellant offered a transcript of the preliminary hearing but the record is silent as to whether the trial court permitted the filing thereof. However, the order for preparation of the record on appeal signed by the trial court on September 8, 1941, provides for the inclusion in the record on appeal of a “Transcript of Preliminary Hearing.”

On the same day that appellant made the foregoing motion, to-wit: November 24, 1941, the Attorney General made a counter motion to dismiss the appeal upon the ground of the lack of jurisdiction of this court to entertain the same for the reason that no valid notice of appeal was given by appellant. It is urged that, while appellant on September 3, 1941, gave oral notice of appeal from the judgment and from the order denying his motion for a new trial, no judgment was ever rendered, but that the proceedings were suspended following appellant’s conviction of the crime of grand theft and appellant was granted probation.

Since the record discloses that appellant was placed on

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probation, the motion to dismiss the appeal from the judgment must necessarily be granted.

It is further urged by the Attorney General in support of his motion to dismiss the appeal that the record does not show that appellant gave oral notice of appeal from the order of July 21, 1941, denying his motion for a new trial, or that he gave written notice of appeal within five days or at all from the date of said order.

Section 1237 of the Penal Code provides that an appeal may be taken by the defendant in a criminal prosecution from “an order denying a motion for a new trial.”