In re Garcia

BARNARD, P. J. A complaint was filed in the Justice’s Court in Fresno County charging the petitioner and a man named Monroe with having the carcass of a female deer in their possession in violation of section 1250 of the Fish and Game Code, as amended. (Stats. 1935, p. 1320.) Monroe pleaded guilty and was fined $75, and the petitioner "stood trial. The first jury disagreed, but on a second trial he was convicted. On November 8, 1935, he was fined $200, with the alternative of 100 days in jail, and written notice of appeal was filed in the justice’s court on November 12, 1935. Apparently the justice then sent the papers to the superior court as the record in that court shows, under date of November 13, 1935, “Filed papers on appeal.” However, the petitioner filed a statement of the case in the justice’s court on [210]November 16, 1935, in accordance with section 1468 of the Penal Code, and a notation of the same was entered on the docket on that date. It appears that the district attorney filed suggested amendments to this statement in the justice’s court on November 19, 1935, but no notation thereof was made on the docket.

The next entry in the superior court, after November 13, 1935, was on January 31, 1936, when the district attorney filed a notice of motion to dismiss the appeal on the ground that the appeal had not been prosecuted by the appellant within the time required by law. On the same day, the petitioner filed notice of a motion to bring on the motion to dismiss the appeal for hearing, and for a hearing on the appeal. These matters came on for hearing on February 14, 1936, the statement on appeal having been filed the day before. The court entered its order dismissing the appeal and refusing to pass on the other matters presented. A certified copy of the order dismissing the appeal was filed in the justice’s court on February 28, 1936, and, on March 2, 1936, a commitment was issued by the justice of the peace upon which the petitioner was taken into custody. The application for this writ followed.

The main question here presented is whether the justice’s court had jurisdiction to issue the commitment and this in turn depends upon whether the superior court exceeded its jurisdiction in dismissing the appeal under the circumstances here appearing.

The superior court based its order dismissing the appeal upon the case of People v. Bathurst, 98 Cal. App. 552 [277 Pac. 201, 202], In that case it did not appear that any statement to be used on appeal had been prepared, served, settled or filed at the time the motion to dismiss was made, which was long after the time allowed by the statute for the filing and serving of such a statement. In commenting on section 1468a of the Penal Code, the court there said: ‘1 This section insures a defendant the right to demand a hearing within the time prescribed, or to discharge, but its salutary application is predicated upon compliance by the defendant with other indispensable requirements of the same code.”