People v. Phillips

45 Cal. 44 | Cal. | 1872

By the Court:

It is necessary that in the transcript of the record in a criminal case tiled in this Court, it should distinctly appear that an appeal has been in fact taken—otherwise no duty is cast upon us to look into the case. An appeal is to be taken by filing a notice of appeal, and serving it upon the Clerk of the Court in which the action was tried, in which notice it must be stated that the appellant appeals from the judgment. (Hitt. Genl. Laws, Sec. 2073.) When the appeal is taken by the defendant, the notice must also be served upon the District Attorney of the county in which the judgment was rendered. (Id., Sec. 2074.)

In the transcript filed here it does not appear that any such notice was filed or served, except by way of recital in the bill of exceptions, in which it is stated that a notice of appeal had been duly given. The office of a bill of exceptions, and the matters which may be incorporated therein, are distinctly set forth in the statute. (Sec. 2020, et seq.) The filing and serving of a notice of appeal is not a matter that can be inserted therein. There would be just as much propriety in reciting it in the judgment.

It is part of the business of the Attorney General to examine the record presented here, in order to see if it is in a condition to be submitted for determination by the Court. It is, perhaps, proper to add, to save the defendant the trouble of taking an appeal in this case, that we have thoroughly examined the record and points filed, and that no error is shown therein, which would justify a reversal of the judgment, were an appeal taken.

Order of submission set aside, and cause stricken from the calendar.