People v. Gavin

THE COURT.

A purported record on appeal having been filed in this court, consisting of typewritten clerk’s transcript and typewritten reporter’s transcript, on behalf of the defendant a motion was made for diminution of the record, which motion was supported by affidavits to the effect that the testimony of Allen G. Moran, a witness, was omitted from the record; that certain objections to adjournment on December 17, 1919, and December 18, 1919, on account of the absence of a witness for the prosecution, had been omitted, and that the proceedings, after the jurors had reported that they were unable to agree, by which they were coerced to agree to a verdict of guilty, were omitted from the record. There was no counter-showing other than the transcripts on file. On behalf of the state it was stated that a motion had been made in the trial court to correct the record, which motion had been denied, and it was con

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tended that the only remedy of the appellant in such a case is by a direct appeal from the Order denying the motion, as being a special order made after judgment.

Apart from any provisions of the law, it would seem unreasonable that one convicted of crime should be required to languish in jail during the period required for the determination of a collateral appeal, before he could present his appeal from the judgment upon a record such as is provided for in the Penal Code.

It is provided in section 1247c of the Penal Code, that “Upon suggestion to the appellate court . . . that a further transcription of the proceedings is necessary, if in the opinion of the court it is necessary to have a further transcription of the proceedings in the trial court, it may order the same to be transcribed by the phonographic reporter within a time fixed in the order; provided that no further transcription shall be ordered upon the suggestion of the appellant, unless the application therefor was included in the original application made to the trial court.” By section 1247 of the Penal Code it is provided that upon an appeal being taken “the defendant must within five days file with the clerk and present an application to the trial court, stating in general terms the grounds of 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.” It is further provided that the court shall, within two days after the filing of such application make an order directing the phonographic reporter to transcribe such portion of his notes as in the opinion of the court may be necessary to fairly and fully present the points relied upon by the appellant. If the court fails to make the order within two days after the application is filed, the notes requested in the application shall be transcribed without such order.