People v. Ramey

ARCHBALD, J.,

pro

tem.

On May 25, 1933, an information was filed charging defendant, jointly with John Rockwell and Burt Hathaway, with the crime of grand theft, in unlawfully taking a yearling heifer belonging to one Weber. On the same day, at 2 P. M., the three defendants were arraigned in the superior court and each pleaded guilty to the charge and made oral application for probation, hearing on which was set for June 5th. At the time of such hearing defendant Ramey expressed a desire for the assistance of counsel and the court appointed present counsel to represent him. On June 7, 1933, such counsel moved on behalf of Ramey for permission to withdraw the plea of guilty theretofore entered and for leave to enter a plea of not guilty; also for an order quashing and setting aside the preliminary hearing preceding the filing of the information. Testimony was taken both in support of and in opposition to such motions, and on June 12, 1933, an order

[576]

was made denying them and denying Ramey’s application for probation, and he was sentenced to San Quentin. From such orders and judgment of conviction said defendant has appealed.

On July 21, 1933, said defendant Ramey filed his petition in the lower court for a writ of error

coram nobis.

A demurrer to said petition was filed by the district attorney and was sustained by the court without leave to amend. An appeal is also taken from the order sustaining such demurrer.

A motion has been filed to dismiss the latter appeal because of noncompliance with section 7, Rule II, of the Rules for the Supreme and District Courts of Appeal, which requires the appellant, in an appeal “from an order made after judgment”, among others, within five days after giving notice of appeal, to “file with the clerk and present an application to the trial court, stating in general terms the grounds of appeal,” etc. The record here fails to show that this was done. The section cited also provides that if such application is not filed within the time prescribed “the appeal shall be dismissed”. Such language has been held to be mandatory on many occasions, and in our opinion it is opposed to any other construction. The facts presented on the appeal from the order made after judgment were fully presented to the trial court prior to judgment, and the issue is the same as that involved in the appeal from such judgment. Under such circumstances the later order is not appealable.