People v. Brown

HENSHAW, J.

Defendant was tried and convicted of the crime of murder, and the death penalty was imposed. He appeals from the judgment and from the order denying his motion for a new trial.

Section 1240 of the Penal Code provides that in a criminal ease “appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party.” In

People

v.

Colon,

119 Cal. 668, [51 Pac. 1082], it was held that the proceedings specified in section 1240 must be.taken to confer upon this court jurisdiction to hear and determine the appeal.

People

v.

Colon

quotes from

People

v.

Bell,

70 Cal. 33, [11 Pac. 327], where it is said: “The transcript herein does not show that the notice of appeal was served on anyone. The law requires that it shall be served on the attorneys of the adverse party (Pen. Code, sec. 1240), and the transcript on appeal must show it.

(People

v.

Phillips,

45 Cal. 44;

People

v.

Clark,

49 Cal. 455.) This not being the case, the appeal cannot be considered.” As this omission and error was called to appellant’s attention by respondent’s brief, and as no effort has been made to cure the omission or to show

[745]