297 P. 965 | Cal. Ct. App. | 1931
The defendant pleaded guilty to the offense of grand theft in the Superior Court of Fresno County and judgment was pronounced on January 2, 1931. No oral notice of appeal was given by the defendant at that time, but written notice of appeal was served and filed on January 5, 1931, under the provisions of section
"An appeal from a judgment may be taken by the defendant by announcing personally or through his attorney in open court at the time the judgment is rendered that he appeals from same or by filing a written notice of appeal within two days after the rendition of judgment with the clerk of the court wherein judgment was rendered, and from any order made after judgment, by announcing in open court at the time the same is made that he appeals from the same."
[1] A motion to dismiss the appeal has been made by respondent upon the ground that the defendant did not file with the clerk of the court, within two days after rendition of judgment, his written notice of appeal. It appears that January 4, 1931, the second day after judgment was pronounced, fell on Sunday, and it is contended by the appellant that he had until January 5, 1931, within which to serve and file his written notice of appeal. It has been aptly pointed out by appellant that a situation might arise where the entire period of two days for the giving of notice under section
Respondent lays stress upon the use of the word "within" in section
It is ordered that the motion for dismissal of the appeal be denied.
Barnard, P.J., and Jennings, J., concurred.