Rhodes v. Sargent

KERRIGAN, J.

This is a proceeding in

mandamus.

The petitioner herein, charged with murder, was tried and found guilty of murder in the second degree. On June 5, 1911, a motion for a new trial was denied, and a judgment of conviction was entered, from which judgment and order petitioner, in open court, on said fifth day of June, announced and took an appeal. At the same time the court, upon petitioner’s motion, directed the phonographic reporter to transcribe all the testimony and proceedings had and taken at the trial, for the purpose of said appeal. In compliance with that order the proceedings were transcribed and filed with the clerk, and presented to the judge within the time prescribed by law; but the judge on July 5th refused to certify thereto, canceled the certificate of probable cause, and ordered and decreed that the judgment be forthwith enforced, upon the ground that petitioner’s appeal was ineffectual for any purpose, for the reason that he had not filed and presented a proper application within five days after the entry

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of the judgment, stating the ground of the appeal, the points upon which he relied, and designating what portions of the reporter’s notes it would be necessary to have transcribed to fairly present the points of the appeal. Whereupon this proceeding was instituted to compel the court to certify to the reporter’s transcript, in order that petitioner might perfect his appeal.

The action of the court in this regard was based upon section 1247 of the Penal Code as amended in 1911, which amendment was passed April 6th of that year, and went into operation sixty days thereafter, to wit, June 5th [Stats. 1911, p. 692]

(Santa Cruz Water Co.

v.

Kron,

74 Cal. 222, [15 Pac. 772]), the day the appeal herein was taken. That section as amended reads as follows:

“Upon an appeal being taken from any judgment or order of the superior court to the supreme court, or to a district court of appeal, in any criminal action or proceeding, where such an appeal is allowed by law, the defendant, or the district attorney when the people appeal, must within five days file with the clerk and present an application to the trial court stating in general terms the grounds of the appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter’s notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time the appeal is wholly ineffectual and shall be deemed dismissed, and the judgment or order may be enforced as if no appeal had been taken. ...”