249 P. 871 | Cal. Ct. App. | 1926
As shown by the return made by respondent to the writ of review which we issued in this proceeding, petitioner was tried upon a criminal complaint in a recorder's court. The trial was by jury and resulted in the return of a verdict of guilty on March 5, 1926. If we are to consider the docket of the recorder, copy of which was filed with respondent court and which appears as a part of the record brought to us in this proceeding, it appears that no judgment was pronounced in the action by the recorder. The docket shows, under the date just mentioned: "Jury returned verdict of guilty. Notice of appeal by Atty. Cook for defense." On the next day petitioner filed with the recorder a written notice of appeal in which it was stated that she appealed to respondent court "from a judgment heretofore made and entered in the above-entitled action on the 5th day of March, 1926." Pursuant to the appeal thus taken, or, at least, attempted to be taken, the cause came on for trial in respondent court, after an order had been made reversing "the judgment of conviction" in the recorder's court and granting a new trial in respondent court. At the inception of the trial, and before a jury was called, petitioner objected that the court had no jurisdiction of the action for the *275 reason that the recorder had pronounced no judgment and that the appeal was therefore premature. The objection was overruled, the trial went forward to a conclusion, and the jury found petitioner guilty. Petitioner then filed in this court her petition for the writ of review.
Petitioner makes here the same point upon which she grounded her objection in respondent court. She says, specifically, that her attempted appeal was abortive for the reason that it was in effect an effort to appeal from the verdict of a jury, and this even though her written notice of appeal recited that she appealed from a judgment. [1] Respondent essays to meet this argument by the counter contention that the writ of review will not lie to review the judgment of a justice's or recorder's court after appeal therefrom to the superior court, citing the well-known case of Roberts v. Police Court,
The point is also made by respondent that the docket of the recorder is not before us, despite the fact that a copy of it was filed with respondent court and is incorporated in the record returned to us under the writ heretofore issued. The determination of this point involves considerations of a complex and far-reaching character, imposing upon us, as it does, the duty of construing some of the latest enactments of the legislature.
Section 3 of an act of the legislature passed in 1858 reads as follows: "The appeal to the county court from the judgment of a justice's, recorder's, mayor's, or police judge's court, shall be heard upon a statement of the case settled by the justice, police judge, recorder, or mayor, embodying the evidence, and such rulings of the court as are excepted to" (Stats. 1858, p. 218).
Appeals from recorder's courts in criminal cases for many years have been governed by the provisions of the Penal Code relating to appeals from justice's courts (Deering's Gen. Laws 1923, Act 5233, secs. 806, 882). Section *276
Section
From 1880 to 1925 section
Section
In dealing with a case in which there had been an appeal from a police court the supreme court said: "There is nothing in the point that the County Court could not entertain the appeal except upon a statement prepared as provided in section 3, page 218, of the statutes of 1858. . . . The section in question does not apply to cases where the rulings of the Court, alleged to be erroneous, appear upon the face of the judgment roll. Where the errors do not appear upon the face of the judgment roll a statement is made necessary because the errors can in no other way, except by a trial de novo, be brought to the notice of the appellate court" (People v. Maguire,
The amendments of 1925 to sections
The appeal of petitioner from the recorder's court to the superior court, which is the subject of scrutiny in the present proceeding, was perfected long after the above-mentioned amendments of 1925 became effective, and the procedure governing it must be found in the language of those amendments. Under the change in the law then effected, was the docket of the recorder a part of the record on appeal? Can we consider the docket here? To what extent, if any, is the rule of People v. Maguire, supra, and Morley v. Elkins, supra, abrogated by the amendments? *279
It may be argued in support of the position of respondent that under section
According to the strict letter of section
Section 975 of the Code of Civil Procedure, which relates to appeals to the superior court in civil cases, provides for a statement of the case and requires: "The statement must contain the grounds upon which the party intends to rely upon the appeal, and so much of the evidence, as may be necessary to explain the grounds, and no more." The section provides further: "The statement . . . with a copy of the docket of the justice or judge, and all motions filed with him by the parties, during the trial and the notice of appeal, may be used on the hearing of the appeal before the superior court." Section 975 was not amended in 1925, but section 984 of the same code, a new section adopted in that year, provides that section 975, along with others, "are hereby made applicable to appeals from municipal courts." Why was section 975 permitted to stand, in its reference to the docket and to motions filed with the justice, while such a reference was omitted from the amended section
We have arrived at a conclusion opposed to that for which respondent contends, and we now proceed to state the arguments which in our opinion support it. It will be remembered that section
Whether the provisions of section
So much seems reasonably deducible from a survey of section
We continue our analysis of section
Section
[2] From all these reflections it appears to us that section
[3] It becomes material now to re-examine section
[4] We conclude that, in the present instance, the docket of the recorder's court is before us. As the docket shows no action of the recorder — no judgment — following upon the verdict of the jury, it seems that the appeal attempted to be perfected by petitioner was premature and that the cause never was subjected legally to the jurisdiction of respondent court. We do not see how we can presume in aid of the docket of the recorder that a judgment was entered by him, merely because petitioner attempted to appeal from a judgment, nor do we see how petitioner can be estopped by the form of her notice of appeal to assert that no judgment was entered. None of the elements of an estoppel seem to be presented by the record. It seems that the cause in which petitioner is defendant is still within the jurisdiction of the recorder and that an appropriate means must be found, even at this late day, whereby to pronounce judgment upon the verdict rendered in his court.
Judgment annulled.
Finlayson, P.J., and Craig, J., concurred. *286