253 P. 747 | Cal. Ct. App. | 1927
The appellant was convicted of the crime of manslaughter and also of the offense of failing to stop and render assistance, after having run down and killed a boy riding on a bicycle, on one of the public highways of the county of Sacramento, state of California, on or about the ninth day of January, 1926. His appeal is prosecuted from an order denying a motion for a new trial.
On the twenty-fifth day of March, 1926, after an order denying defendant's motion for a new trial had been made and entered, the defendant filed a notice of appeal, which, omitting the title, is in the following words and figures:
"You and each of you will please take notice, and notice is hereby given you, that the appellant above named John Trowbridge appeals to the Third District Court of Appeal, in and for the State of California, from the Judgment of the above entitled Court made and entered on the 25th day of March, 1926, denying his motion for a new trial. That the said appeal will be and is taken on all the records, papers and files now or hereafter on file, relative to said action with the Clerk of the above entitled Court.
"Dated: March 25, 1926.
"FRED J. HARRIS "M.F. SHELLEY "Attorneys for Defendant."
On the same day appellant filed his application for a transcript of the phonographic reporter's notes, which application, omitting the title, is in the following words and figures: *314
"You and each of you will please take notice, and notice is hereby given you, that John Trowbridge the defendant and Appellant above named, having heretofore taken an appeal to the Third District Court of Appeal in and for the State of California, from the Judgment and order of the above entitled Court denying his motion for a new trial made and entered on the 25th day of March, 1926, demands a full and complete transcription of Phonographic and/or stenographic notes made of all the matters and things pertaining to the above entitled criminal matters and numbers in the above entitled Court, on the 18th, 19th and 22nd days of March, 1926, or any other dates.
"The same being necessary for appellant in order to prosecute and properly present his case before the Third District Court of Appeal, in and for the State of California.
"Dated: March 25, 1926.
"JOHN TROWBRIDGE, "Defendant and Appellant."
The transcript was prepared and certified to this court, covering some 541 pages, and we are now asked to examine said transcript and determine therefrom whether or not the evidence was sufficient to justify the verdict in finding the defendant guilty of manslaughter. [1] This, however, would be of no avail to the appellant because we have, for reasons herein about to be stated, no jurisdiction to interfere with the order or judgment of the trial court. Section 1247 of the Penal Code provides: Upon the taking of an appeal, the appellant "must, within five days file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal is wholly ineffectual and shall be deemed dismissed, and the judgment or order may be enforced as if no appeal had been taken." This subdivision of section 1247 of the Penal Code has been construed by the district court of appeal a number of times and it has been uniformly held that a statement of the grounds upon which the appeal is based must be set forth in the application and that since the amendment to this section in 1911, such provision is mandatory. In the case of *315 Rhodes v. Sargent,
It follows from what has been said that the appeal in this case must be and the same is hereby dismissed.
Finch, P.J., and Hart, J., concurred.