People v. Shepherd

YORK, J.

The People moved to dismiss the appeal of defendants on the grounds hereinafter set forth in detail.

The defendants were convicted of assault by means of force likely to produce great bodily injury. Verdict of guilty was returned February 25, 1935, as to all three defendants, and on February 28th appellants moved for new trial, which motions were denied on March 11th. Appellants, on said latter date, made oral applications for probation and March 27th was set for hearing on said applications. No written applications for probation were ever made by appellants, but on March 27th,-—the day set for hearing—counsel for appellants told the court he would file the applications that day, and the matter was continued to April 3d. On April 3d, counsel for appellants appeared and objected to a further continuance on the ground that an appeal from the orders denying motions for new trial had been taken on March 13th, and that the court had no jurisdiction to proceed. However, the court continued the matter of hearing on application for probation to April 10th, at which time the appellants moved for a new trial under section 1202 of the Penal Code, on the grbund the court had no jurisdiction to pass sentence, or to grant probation, since the time for passing sentence or granting probation had expired, and on the ground particularly that the defendants had not consented to any continuance of the matter to said April 10th. .At this hearing the court granted probation to the appellants for a term of one year, six months thereof to be spent in the county jail.

Appellants on March 13, 1935, filed a notice of application for appeal, pursuant to section 7, rule II, of the Rules of the Judicial Council for the Supreme and District Courts of Appeal ; on April 12,1935, they caused to be filed a notice of appeal from the orders of March 11th, denying motions for new trial and from the alleged order of April 10th, denying motions for new trial under sections 1191 and 1202 of the Penal Code, and on the same day filed a second notice of application for appeal pursuant to section 7, rule II, of the Rules of the Judicial Council for the Supreme and District Courts of Appeal.

[646]

This matter is now before this court on a motion of respondent to dismiss appeal on the grounds (1) that no proper appeal has been taken; (2) that no notice of appeal was made or filed as to the orders of the trial court of March 11, 1935, denying defendants’ and appellants’ motions for a new trial; (3) that the appeal of appellants was not taken within the time required by the provisions of section 1239 of the Penal Code; (4) that the purported order of the trial court of April 10,1935, denying appellants’ motion for a new trial was never made by said court; and (5) that the record affirmatively shows that no judgment was ever imposed upon defendants and appellants.