271 P. 781 | Cal. Ct. App. | 1928
This is an application of Benjamin Elconin on behalf of Diana Bathurst for the writ of habeas corpus. From the petition, the return thereto, and the findings of this court upon evidence taken, we may state the following situation: Diana Bathurst was tried upon a charge of petty theft before the municipal court of Los Angeles on July 9, 1928, and there found guilty. The trial court on July 11th sentenced the defendant to 180 days in the city jail, suspending the sentence as to 150 days thereof. The petitioner contends that he presented a motion for a new trial prior to pronouncement of sentence, but from the evidence adduced we have found that the motion for a new trial was not presented until after judgment. Some time subsequent to the pronouncement of sentence and in the afternoon of the same day counsel served upon the city prosecutor a written motion for a new trial, which bears no filing mark, and which appears to have been called to the attention of the court on July 13, 1928, at which date it was set for hearing for July 16, 1928. After argument of the motion it was granted and the cause was transferred to another division of the court for retrial. When the cause was called for trial on August 15, 1928, the trial judge set aside the order granting the motion for a new trial on the ground that the motion had not been made until after judgment was pronounced and entered, and ordered the defendant committed. This outlines the facts except that on July 11th, when the defendant was sentenced, her counsel gave oral notice of appeal, bond for the release of defendant pending the appeal was fixed by the court and furnished in the sum of $1,000. *643
No other steps were taken with respect to the appeal. It is conceded by counsel under the authority of Lillywhite v.Superior Court,
[1] The petitioner asserts that the municipal court lost all jurisdiction over the proceeding when the notice of appeal was given, while the respondent points to section
"The appeal to the superior court from a judgment of a municipal court, or from the judgment of a justice's or police court, shall be heard upon a statement of the case settled by the judge of the municipal court or by the justice or police judge. 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. The statement must be prepared by the appellant and filed with the court, and a copy served upon the opposite party, within five days after the filing of the notice of appeal. The respondent may, within five days after the service of the copy and the filing of the proposed statement, file amendments thereto, a copy of which must be served upon the appellant. Within five days from the time of the filing and serving of the amendments or if no amendments be filed then within ten days from the time of the filing of the statement, as herein provided, the court must settle the same, and if in the opinion of the court the statement is incorrect or insufficient he shall correct it. If no statement is filed and served as herein provided, the appeal is ineffectual for any purpose, and shall be deemed dismissed, and the judgment or order appealed from shall be enforced as if no appeal had been taken."
Since the amendment of the section to read as quoted above in 1925, it has been analyzed at length and declared to provide for "the equivalent of a bill of exceptions, with the difference, at least, that the statement must contain `the grounds upon which the party [appealing] intends to rely upon the appeal'" (Garrett v. Superior Court, *644
We also direct attention to the opening words of the section as follows: "The appeal to the superior court . . ., shall be heard upon a statement of the case," etc. We have had occasion heretofore to note a distinction between a method devised for the taking of an appeal and the manner provided for preparing the record upon which the appeal is to be heard. Not only is mention made of the fact that section
It must be obvious from the observations so far made that an appeal once perfected is pending in the appellate tribunal until dismissed by that court. The defendant in the action in the municipal court having given bond to stay the execution of the judgment pending the appeal is therefore entitled to her liberty until some further step is taken.
[2] This would dispose of the present proceeding were it not for the fact that counsel do not agree upon the effect of the order granting the motion for a new trial, which motion, as we have noted, was not filed until after judgment was pronounced; and inasmuch as that question will probably be argued in subsequent steps to be taken, we ought to announce our opinion thereon. Section 1450 of the Penal Code provides that the defendant may move for a new trial "at any time before judgment." This language is plain and unambiguous. It would seem obvious that once the court has pronounced judgment the time has gone within which the motion may be presented and as completely so as though a motion had been made and denied. It was held in People
v. Walker,
Diana Bathurst is ordered discharged from custody.
Works, P.J., and Craig, J., concurred.