People v. Mario

122 P. 76 | Cal. Ct. App. | 1912

The defendants above named were jointly charged, by information, filed by the district attorney of Plumas county, with the crime of robbery. They were given separate trials, and each was convicted of the crime charged in the information.

Each of the defendants appeals from the judgment under the method prescribed by section 1247 of the Penal Code, and, as one of the grounds of the appeal in each cause is the alleged insufficiency of the evidence to justify the verdict, the court below ordered, upon the application of the defendants, all the testimony in each case to be transcribed by the phonographic reporter, and said testimony, therefore, constitutes a part of the record on appeal in each case.

But counsel for the appellants have not filed a brief or points and authorities in either case. The transcript in each case was filed in this court on October 28, 1911. Rule IV [160 Cal. xliii, 119 Pac. x] of the supreme court provides that, "in criminal cases, the appellant shall file his points and authorities (with proof of service of a copy thereof on the attorney general) within ten days after the filing of the transcript," and rule V [160 Cal. xlvi, 119 Pac. x] authorizes a dismissal of the appeal where the points and authorities are not so filed. The reason of the last-mentioned rule is that, since an appeal presupposes at least some debatable ground of complaint against the judgment and the manner of its procurement, it is the duty of the complaining party (the appellant) to point out the specific points upon which he seeks to support his appeal, and that it is not intended or contemplated that the reviewing court, unaided by appellant himself, shall make an independent investigation for the purpose of ascertaining whether he has been legally or illegally convicted of the offense charged against him. As is said in People v. Perry, 16 Cal.App. 771, [117 P. 1036], where the appellant likewise failed to file points and authorities, "this court is not required, in the absence of special assignments, in some form, of alleged error, to search the record for the purpose of determining whether the trial in the court below was in all respects conducted without prejudice to the substantial rights of the accused."

We have, however, notwithstanding the omission to file briefs in these cases, carefully read the testimony and examined the instructions in each case. The principal testimony upon which the verdicts are founded came from the prosecuting witness. It involves a direct statement that the defendants went to the room of the prosecuting witness shortly after the latter had retired for the night and, while one held a pistol over him, the other abstracted the sum of ninety dollars in gold from a pocket in the shirt in which he retired and which was on his body at the time of the robbery. This testimony is sufficient to support the verdict returned in each of the cases.

The instructions given in both cases fully, fairly, clearly and correctly covered every phase of each case as disclosed by the charge and the evidence.

For the reasons stated in the foregoing the appeal in both cases will have to be dismissed.

It is therefore ordered that the appeal in the case ofPeople v. Mario (No. 171) be dismissed, and that the appeal in the case of People v. Mario (No. 172) be dismissed.

Chipman, P. J., and Burnett, J., concurred.