People v. Vincent

FINNEY, J.,

pro tem.

The appellant Harold Vincent was convicted of robbery in the second degree and sentenced to serve the term prescribed by law in the state penitentiary at San Quentin. Judgment was pronounced on April 6', 1931, and on the same day defendant gave oral notice of appeal from the ‘ ‘ judgment of conviction ’ ’. On April 8,1931, written notice of appeal was filed, stating that the defendant appealed from the judgment and from the order of the court denying his motion for a new trial. The motion for a new trial was dated March 30, 1931, and was filed the following day. The motion stated, among other things, that the defendant “moves the above-named court for a new trial under section 1181 of the Penal Code and all subdivisions thereunder and amendments thereto and more especially under subdivisions 4, 5, 6, and 7” and “that since the rendition of said verdict against said defendant, said defendant has discovered new evidence material to defendant’s case, which, if produced at the trial of the case, would have resulted in a different verdict”. The motion for a new trial was denied April 6, 1931. An application for a transcript of the phonographic reporter’s notes was filed April 8, 1931, but this instrument does not contain any statement of the grounds of the appeal nor the points upon which the appellant relies, as required under section 7, rule II, of the Rules of the Judicial Council for the Supreme Court and the District Courts of Appeal, adopted June 1, 1928, and the attorney-general moves to dismiss this appeal on that ground.

The provisions of section 7, rule II, of the Rules of the Judicial Council provide that, in a criminal case, “the appellant must, within five days after giving notice of the appeal, 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,

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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 shall be dismissed.” This provision is mandatory, and it has been held that where no such application has been presented or filed, the appeal must be dismissed. (See