People v. Shannon

[154]

SHINN, P. J.

Moe Marty Shannon, Joseph George Shannon and Theresa N. Tezze, were charged by information with three offenses of burglary. After pleas of not guilty were entered they came on for trial. In a trial to the court witnesses were sworn and testified on behalf of the People. Defendants offered and the court admitted evidence in their behalf. Defendants were acquitted as to counts two and three of the information and found guilty as to count one. Defendants moved for a new trial, which motion was denied. Sentence was imposed. Moe Marty Shannon and Theresa N. Tezze appeal from the judgments.

The clerk’s minutes read: “Trial by jury is waived by each defendant, his counsel and the district attorney.” The reporter’s transcript, duly certified by the reporter as a full, true and correct copy of the proceedings had and testimony taken, and certified by the trial judge, is before us as part of the record on appeal. It reads in part as follows: “The Court: Very well, you may proceed. Let’s see, I don’t believe there has been a waiver of a jury trial. Mb. Saeier : The defendants waive a jury. Mr. Howard : People join in the stipulation. The Court: So ordered.”

Appellants in their opening brief advance the contention that they had not waived trial by jury, urging that the reporter’s transcript should prevail over the clerk’s minutes, and that the latter were in error.

The attorney general filed a motion for augmentation of the record, attached to which was a supplemental transcript, certified by the reporter and certifying that due to oversight there was an omission in the original transcript and that the same should read: “Mr. Saeier: The defendants waive a jury. Is that correct? Moe Shannon: Yes. Mr. Howard: People join in the stipulation.” The words added are: “Is that correct? Moe Shannon: Yes.” Attached to the reporter’s certificate is a copy of the stenotype notes relating to the matter. The motion of the attorney general was granted and the certificate of the reporter received as part of the record. We then had before us the reporter’s transcript showing that only one defendant waived trial by jury and the clerk’s minutes showing that all the defendants waived. Upon the court’s own motion an order was made directing the trial court to correct its records to speak the truth with respect to the conflict between the reporter’s transcript and the clerk’s minutes. Subsequently there was filed a supplemental reporter’s transcript showing corrections as above