People v. Riga

CRAIG, J.

The application for transcript and statement of grounds of appeal was not filed by the appellant in this case within the time specified by rule II, section 7, and a motion is made on behalf of the People that his appeal be

[478]

dismissed, but it is to be observed that the present counsel of record for appellant did not become his counsel until long after this time had elapsed.

Upon an appeal by the defendant in a criminal case it is required that he file such application and statement within five days after giving notice of appeal, and that “if such application is not filed within said time, the appeal shall be dismissed. ’ ’

In denying a motion to dismiss, upon rehearing, after a decision upholding an order of dismissal previously granted by the District Court of Appeal, the Supreme Court held that an appeal in all respects sufficient except for technical defects in form or substance, wherein the application had been filed in time, need not be dismissed.

(People

v.

Bryant,

207 Cal. 450 [278 Pac. 1025].) The only reason there mentioned for relaxing the rule was that “appellants substantially complied with section 1247, Penal. Code, and the defect worked no injury to

anyone”;

that the legislation was then new and might have been misleading. In

People

v.

Davis,

103 Cal. App. 318 [284 Pac. 516], relied upon by the People in the instant case, an appeal was dismissed for failure to file an application as required, it appearing that the rule had then been in operation for a period of seventeen months. Section 1247 of the Penal Code, which prior to its repeal was similar in effect to the rule in question, was repeatedly construed to be mandatory.

(People