This is аn appeal from an order denying an application made by defendant in propria persona to the San Francisco Superior Court, dated December 15, 1954,
*504
with respect to his appeal from a judgment of conviction of second degree murder entered by said court on December 19, 1951. No notice of appeal of said judgment had previously been filed. In 1953 appellant hаd petitioned the California Supreme Court for a writ of habeas corpus, which was denied without opinion. Appellant then petitioned the United States Supreme Court for a writ of certiorari stating аmong other grounds: “XI. That petitioner was deprived of his rights to give notice of appeal and the arrest of judgment of conviction by actions of his jailors.” On October 14, 1954, said petition was denied on the following terms: " The petition for writ of certiorari is denied without prejudice to the petitioner’s rights under the facts alleged to prosecute an appeal in the California State Courts in accоrdance with principles announced in
People
v.
Slobodion,
Mr. Smith, who at that timе was captain of the day watch in charge of County Jail No. 1, testified for the People that mail was censored but that no mailing was refused except when it was obscene or derogatory. He did not recall any conversation about appellant’s mail or any of appellant’s mail being refused. Appellant had the normal mailing privileges.
Counsel for appellant, appointed by this сourt to assist him on this appeal, has diligently urged that the above facts can be brought under the rule of the Slobodion case, supra. Both parties have concentrated on this point and have abstained from treating the formal adequacy of appellant’s application or motion. We also think it advisable to decide this appeal solely on the merits as to the matter suggested by the United Stаtes Supreme Court, and have concluded that on that basis the order must be affirmed.
In the Slobodion case the defendant incarcerated in San Quentin had four days after judgment placed his notice of appeal in the prison mailbox. Three days later it had been returned to him without explanation. The next day *506 he went to the mailing department where the sergeant in charge could find no explanation for the return. Defendant explained the nature of the document and the importance of having it mailed at once, hut, notwithstanding a promise to take care of it, the mailing was delayed some days so that it reached the clerk’s office a few days too late. The Supreme Court held that nevertheless the appeal should be considered timely.
In its opinion the court upheld the genеral rule that in criminal cases the appellate courts are without jurisdiction to consider an appeal taken after the expiration of the 10-day period of rule 31 of the Rules on Apрeal, but recognized that an exception should be made in the case of a defendant who was in custody, who had taken every step allowed by the officials in whose custody he was which he could possibly take to perfect his appeal, but who was unable to have the clerk of the superior court timely receive his notice of appeal because of the negligencе of said authorities in forwarding it. Cases in which the defendant was without negligence prevented from timely noticing his appeal by other circumstances than the fault of public officials were expressly distinguished. The exception was rationalized as a constructive timely appeal. From the above it appears that there are two requirements for the applicability of the exception: 1. The defendant must be free of all fault or lack of dilegence contributing to the tardiness of the notice of appeal and 2. the tardiness must have been caused by the fault, negligent or intentional, of the public officials in whose custody the defendant was.
In our case these requirements are evidently not fulfilled. The only step which appellant took to effectuate his appeal within the statutory period was to hand the notice to a man whose exact capacity at the jail does not appear, but who was not the person in charge. It is conceded on apрeal that no jail attendant was under duty to act as appellant’s messenger. Nevertheless when appellant was so told within half an hour, he did not try to effect the filing of the document in any other manner. No endeavor was made to mail it, although appellant had sent out other mail which at least in part had reached the addressees. Although he testified that he had paid for services of his attоrneys with respect to an appeal, if that should become necessary, he did not instruct them by mail to file notice of appeal. Even if it should be believed that his conversations with *507 Mr. Jule had convinced him that the jail officials did not wish him to appeal without the assistance of his attorneys, that could not reasonably prevent him from instructing these attorneys. With respect to the alleged fear of retaliation it must be noted that appellant did not testify to any threat. The vague conversations with Mr. Jule to which he testified cannot be considered to have prevented timely filing of the appeal, even if we assume that Mr. Jule was employed at the jail in such a capacity that his acts would be those of the authorities in whose custody appellant was.
Appellant urges that it is not enough that the State did not prevent the timely appeal but that it had a duty to take positive action to assist appellant, who was restrained, in timely perfecting it. The failure to do so is said to bring appellant's case under the rule of the Slobodion case. This contention disregards the very exceptional nature of the rule and would extend it beyond its reasonable limits.
Moreover, as appellant knеw that no notice of appeal whatever was forwarded during the statutory period for appeal, his complete lack of diligence after he left the jail cannot be overloоked. When on January 3, 1952, he came to San Quentin he was still in possession of the papers he had prepared but he did not mail them and instead he took nearly two years to prepare a petition for writ of habeas corpus. The theory of the Slobodion ease, based on a constructive timely filing of notice of appeal cannot justify an unlimited postponement of the actual institution of the appeal. In all cases in which the applicability of the rule was accepted the statutory period had been exceeded by a few days only.
Order affirmed.
Dooling, J., and Kaufman, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied November 23, 1955. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.