People v. Howard, 25 P.2d 498

People v. Howard

25 P.2d 498 | Cal. Ct. App. | 1933

Having been found guilty of several different burglaries upon a trial in Los Angeles County, and the judgments having been affirmed (People v. Howard, 115 Cal.App. 140 [300 P. 987]), the appellant nearly two years thereafter moved the trial court to vacate and set aside said judgments. From an order denying his said motion he again appealed.

The record here presents the entry: "Motion to set aside the judgment is denied"; a "Notice of appeal and application for transcript of phonographic reporter's notes" necessary to fairly present the point "that the court erred in denying defendant's motion to annul, vacate, and set aside the judgment rendered against him by said court in the said cause, and in denying each of the points presented by said motion"; and a notice to the clerk of the superior court: "Comes now the defendant in the above entitled cause, after the court has denied two motions after judgment, and appeals from such orders to the Appellate Court . . ." Upon this record alone it is asked that the order be reversed. [1] All intendments and presumptions not contradicted by or inconsistent with the record must be resolved in favor of the regularity of proceedings and orders of the trial court, and it must be held that the order denying the appellant's motion to vacate said judgments is valid until the contrary is made to appear. (People v. Kaiser, 119 Cal. 456 [51 P. 702];People v. Hower, 151 Cal. 638 [91 P. 507]; People v.Russell, 156 Cal. 450 [105 P. 416]; People v. Colson,49 Cal. 679.) [2] An appellate court will not be warranted in going outside the record, since error, if any, must affirmatively and clearly appear therein. (People v. Bemmerly, 98 Cal. 299 [33 P. 263]; People v. Mooney, 176 Cal. 105 [167 P. 696].) No error *443 appearing there is nothing upon which a reversal might be predicated, and the appeal is wholly without merit.

The order is affirmed.

Works, P.J., and Stephens, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on October 13, 1933, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 26, 1933.