People v. McNulty

Beatty, C. J. The defendant in this case was convicted of murder in the first degree, and sentenced to suffer death. He appealed from the judgment of conviction, which was finally affirmed by this court in February last. Upon the going down of the remittitur, the superior court made an order fixing the twelfth day of August, 1892, as the time, and the county jail of San Francisco as the place, of execution of the judgment. From this order the defendant, on the eighth day of August, served and filed his notice of appeal. The people now move to dismiss the appeal, upon the ground that it is frivolous.

[595]This is not an appeal from the judgment of conviction, but only an appeal from the order last above mentioned, made and entered on June 17, 1892, and the fact that said order is designated in the notice of appeal as a judgment does not make it an appeal from the judgment of conviction which was made and entered more than three years before this last appeal was taken. An appeal from the judgment in a criminal case must be taken within one year after its rendition. (Pen. Code, sec. 1239.)

This, then, is an appeal taken under subdivision 3 of section 1237 of the Penal Code, which allows the defendant in a criminal action to appeal “ from any order made after judgment affecting the substantial rights of the party.”

In People v. Sprague, 54 Cal. 92, and in two subsequent cases decided by this court, it has been held that an order made after affirmance of a capital conviction fixing the time and place of execution is one of the orders included by said subdivision. There can be no doubt of the correctness of this view, and it therefore follows that this defendant had a right to take and to prosecute this appeal.

Can it be dismissed upon the ground that it is frivolous?

To dismiss an appeal is to refuse to consider its merits, and therefore there can be no dismissal of an appeal on the ground that it is without merit; for to reach this conclusion the merits must be considered, and the record must be examined.

The motion, therefore, is in terms self-contradictory, and must be viewed in its real character as a motion for a summary hearing of the appeal and affirmance of the order of the superior court. This conclusion seems to be inevitable upon the grounds stated, but if it were not, the statutory provision makes it so.