In Re Bathurst

CRAIG, J.

The petitioner was charged in the municipal court of the city of Los Angeles with petty theft, was tried by the court without a jury, and convicted. Oral notice of appeal to the superior court was given in open court, and a motion for new trial was interposed after sentence was pronounced and said notice had been given. The motion for new trial was granted, and thereafter on the date set for retrial of the cause in the municipal court, the order granting a new trial was set aside upon motion of the city prosecutor, upon the ground that it had been granted after sentence was pronounced, and a commitment issued. A writ of

habeas corpus

on behalf of the petitioner was prayed for in this court, and it then appearing that the motion for new

[554]

trial. had been filed and granted subsequently to the oral notice of appeal, and that said appeal had been perfected, though no statement was filed in the superior court, the writ was granted and the petitioner discharged from custody. (94 Cal. App. 641 [271 Pac. 781].) We there said: “It must be obvious from the observations so far made that an appeal once perfected is pending in the appellate tribunal until dismissed by that court. The defendant in the action in the municipal court having given bond to stay execution of the judgment pending the appeal is therefore entitled to her liberty until some further step is taken.”

The city prosecutor thereupon moved the court last mentioned to dismiss the appeal upon the ground that it had not been brought to a hearing within the time prescribed by section 1468a of the Penal Code as added by Stats. 1925, page 951. This motion was opposed by petitioner upon the grounds that a new trial having been granted in the municipal court, it was impossible to have prepared a statement upon appeal within fifteen days; that believing the order granting a new trial valid, she relied thereon and prepared for trial, and strenuously endeavored to prosecute her defense of the samé to judgment on the day set therefor. The appeal was dismissed upon the ground stated.

Petitioner contended upon the hearing of said motion, and here insists, that the provisions of sections 1466 and 1468 of the Penal Code are merely directory; that the original trial court having determined after careful consideration that she was entitled to a new trial, and having granted the same, she should not be penalized for the error of the court in so making an order as to prevent her from pursuing her right of appeal. It is also argued that even though the order granting a new trial was late, it was voidable upon appeal by the people, but not void, and that no appeal having been taken therefrom, it was in force and effect until held otherwise by a court having jurisdiction of the question as to its validity.