People v. Ramirez

LAMBERSON, J.,

pro

tem.

Motion to dismiss an appeal upon the ground that the appellant has not complied with the requirements of section 7 of rule II of the Rules of the Judicial Council promulgated for the Supreme Court and District Courts of Appeal, which provides as follows: “Upon an appeal by the defendant from a judgment of conviction or from an order denying his motion for a new trial, or from an order made after judgment, or upon an appeal by the People from an order granting a new trial, or from an order setting aside an indictment, information or accusation, or from an order made after judgment, 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, 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; provided, that the appeal shall not be dismissed for any defect in the statement of such grounds or points which does not affect the substantial rights of the respondent.”

Judgment was pronounced October 25, 1930, and appellant on the same day gave oral notice of appeal. The record

[509]

contained in the transcripts before the court fails to disclose that appellant filed any application to the trial court for a transcription of the phonographic reporter’s notes, or a statement in general terms of the grounds of the appeal, or the points upon which the appellant relies, or what portion of the phonographic reporter’s notes it would be necessary to have transcribed.

In opposition to the motion to dismiss the appellant makes an affirmative showing by affidavits that within five days after giving oral notice of appeal appellant’s attorney prepared an application for transcript on appeal and a statement of the points upon which appellant would rely upon appeal and designated the portions of the reporter's notes that the defendant desired to have transcribed as the record upon appeal, and also prepared and caused to be signed by the judge of the trial court an order for the transcription of the record upon appeal; that immediately upon the signing of said order by the judge of the trial court, affiant forthwith deposited said papers with and delivered them to the clerk of said trial court at his desk in the courtroom of said trial court for filing, and also for the purpose of advising the court reporter of the making of the order for said transcribing. The order in which these papers were presented is not important. The affidavit of the attorney for appellant further states that upon receipt of the People’s motion for dismissal, he investigated the record in the office of the county clerk to ascertain the whereabouts of the original papers, but has been unable to find them among the files of the office of the county clerk and that he was informed that the papers had been turned over to the phonographic reporter who had reported the case and that the same had been either mislaid or destroyed.