People v. Malone

[407]

WASTE, C. J.

Following their conviction in the superior court upon charges of the commission of a felony, the defendants Malone and Brown appealed to the District Court of Appeal. The attorney-general moved to dismiss the appeal on the ground that it was not perfected as required by section 7, rule II, Rules for the Supreme Court and District Courts of Appeal, which requires that an 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”. The rule further provides: “If such application is not filed within said time,

the appeal shall he disA missed

...” (Italics ours.)

In the case of these defendants, the judgment was entered in the superior court, and notice of appeal orally given on July 15, 1930. The five-day limitation fixed by the rule,

supra,

expired with Sunday, July 20th, unless the fact that the fifth day was, a holiday excluded it from the calculation. (Civ. Code, secs. 10 and 11; Code Civ. Proc., secs. 12 and 13; Pol. Code, secs. 12 and 13.) The District Court of Appeal of the Fourth District took the view that the code sections,

supra,

apply, and refused to dismiss the appeal. We are satisfied with the decision of that court, per Mr. Justice

pro tern.

Lamberson, concurred in by Mr. Presiding Justice Barnard and Mr. Justice Jennings, and adopt the following portion as the opinion of this court:

“ This court will take judicial notice of the fact that July 20, 1930, the fifth day after the giving of notice of appeal, fell on Sunday.

“ The provisions of the rule of the Judicial Council above, cited follow substantially the language theretofore used in section 1247 of the Penal Code prior to its repeal in 1927 (Stats. 1927, p. 1048), and are to be interpreted in the same manner. The provisions of that section and of the rule of the Judicial Council have been held to be mandatory in effect.