People v. Megugorac

SEAWELL, J.

The defendant was convicted in the Superior Court of the County of Los Angeles of murder of the first degree and his punishment was fixed by the jury at life imprisonment at the state prison. His appeal, taken to the Second Appellate District, Division Two, District Court of Appeal, was dismissed by order of said court on the grounds that appellant had failed to file within five days after giving notice of appeal, with the clerk, and present to the trial court an application designating the portions of the phonographic reporter’s notes necessary to be transcribed to fairly present the points he desired to urge on appeal, as required by section 7, rule II, Rules for the Supreme Court and the several District Courts of Appeal.

The defendant announced in open court at the time judgment was pronounced (December 20, 1937) that he appealed from the order denying his motion for a new trial and from the judgment pronounced against him. He failed, however, to file within five days thereafter an application designating the portions of the phonographic reporter’s notes necessary to be transcribed fairly to present the points he desired to urge on appeal, as in said rule prescribed. The designation was supplied some ten days later and the reporter’s transcript was served on the district attorney January 10, 1938, approximately fourteen days after notice of appeal was filed. None of the parties appear to have suffered any prejudice by the brief delay.

The question presented may be thus phrased: “Does a failure to file with the clerk and present an application to the trial court designating the portions of the phonographic reporter’s notes necessary to be transcribed on appeal within the time prescribed in section 7 of rule II,

supra,

deprive the appellate court of jurisdiction to hear the appeal?”

People

v.

Lewis,

219 Cal. 410, 414 [27 Pac. (2d) 73], is cited as authority to sustain respondent’s claim that the court was without jurisdiction to entertain the appeal, and it was accordingly dismissed. Appellant, on the other hand, relies on

People

v.

Bryant,

207 Cal. 450 [278 Pac. 1025], as an authority supporting his contention that the failure to com