172 P. 408 | Cal. Ct. App. | 1918
Lead Opinion
Application for writ of mandate. It appears from the petition that petitioner was informed against for omitting without lawful excuse to furnish his minor child with necessary food, and on December 14, 1917, he was convicted of the offense charged in the information. The court appointed December 17, 1917, as the time for pronouncing judgment. On said day, and before judgment was pronounced, defendant in open court made and filed a motion and application in arrest of judgment, and also a motion and application for a new trial; thereupon the court, at the request of the petitioner, continued the hearing of said motions until the twentieth day of December, 1917, and extended the time for pronouncing judgment until said last-named day, on which day the court made an order denying petitioner's said application and motion in arrest of judgment and also made an order denying petitioner's application and motion for a new trial in said action, and thereupon, at the time said orders were made, petitioner in open court announced that he appealed to the district court of appeal for the third district from the order denying his application and motion for a new trial in said action. Thereafter, and on the same day, to wit, December 20, 1917, defendant appeared before the court and entered into an undertaking to the state, with two sureties, in the penal sum fixed by said court, conditioned that he would pay to the person having the custody of said *145 minor child the sum per month fixed by said court in order to thereby provide for said minor child the necessary food, clothing, shelter, and medical attendance, which bond was approved by said superior court. "That thereupon said court suspended proceedings and sentence in said action"; "that on said twentieth day of December, 1917, and after proceedings and sentence had been suspended, petitioner filed with the clerk of said court and presented to said superior court an application for a reporter's transcript, which application stated in general terms the grounds of said appeals and the points upon which he relied, and designated the portions of the stenographic reporter's notes relied on, which application is in the words and figures following, to wit": (therein appears a recital of the proceedings relating to the notice of appeal, the grounds of the appeal, ten in all, and also a designation of the portions of the phonographic reporter's notes relied on). In the body of the application, as copied in the petition herein, it is stated that the notice of motion was given on December 20, 1917, and the motion was denied by the court on December 20, 1917, and it also appears that defendant gave notice of appeal from the judgment. In the concluding paragraphs the date of the notice of motion and the order made by the court is given as December 17, 1917. Since the argument, a certified copy of the application on file in the action has been filed in this court, from which it clearly appears that the correct date at which the motion and order were made was December 20, 1917, and it was on that date and after the said order was made that the order suspending sentence was made. It is then shown in the petition herein that on said December 20, 1917, "the said superior court refused to make an order directing the phonographic reporter to transcribe such portion of her notes as in the opinion of the court might be necessary to fairly and fully present the points relied upon by petitioner, and refused to make an order directing such phonographic reporter to transcribe any portion of her notes. That said superior court has never at any time made any order directing said phonographic reporter to transcribe any portion of said notes." It is further shown that respondent, McCallum, is the official reporter of said court and took down the shorthand notes of the proceedings in said action on the said motions, and that respondent Duffy was the acting official reporter at the trial; that *146 on December 28, 1917, petitioner demanded of respondents and each of them that within twenty days after said December 20, 1917, they and each of them file with the clerk of said court an original and three carbon copies "of those portions of their respective notes so required by petitioner and his application so filed and presented," but they and each of them refused so to do, "and they have and each of them has informed respondent [petitioner?] that they will not do so." It is further alleged that the said superior court "is of the opinion that petitioner is not entitled to prosecute his said appeals, and that the county of Butte should not be put to the expense of paying for said transcription and has so informed petitioner."
The first point made by respondents is based on the assumption that petitioner in his petition refers to orders made on December 17, 1917, whereas "there are no such orders." The petition itself leaves little doubt that the true date is December 20th. However, the certified copy clears away all doubt and shows that the date of the orders was December 20th and also that there was no notice of motion of appeal from the judgment, and had there been, it should be treated as superfluous, for judgment was in fact suspended.
Respondents' second point is that no appeal has been taken in the manner required by the provisions of section
This brings us to the principal point urged by respondents, to wit, that no appeal lies from an order denying motion for a new trial until after judgment of conviction is entered.
The right of appeal has been said by the supreme court to be guaranteed by the constitution and to be as sacred as the right to trial by jury, and is one of the means provided by law to determine the guilt or innocence of the accused. (Ex parteHoge,
It has been held that the giving notice of appeal to the clerk under the new system gives the appellate court jurisdiction in civil cases. (Hibernia Sav. Loan Soc. v.Doran,
The machinery seems to be amply provided for perfecting the appeal from the order in question, and is the same for perfecting the appeal from the judgment or any order made after judgment, without regard to the fact that no mention of such order is made in section
In the case of People v. Irish,
The contention of respondents leads to this — that the defendant may rest under suspended sentence for a period of five years before he can have his motion for a new trial heard. He may not have been guilty of the offense charged or he may not have been legally convicted, but the law furnishes no remedy under which he can have these questions answered by an appellate court pending suspension of sentence.
We think petitioner is entitled to have his appeal heard pending suspension of sentence, and it is therefore ordered that he have the writ prayed for.
Hart, J., and Burnett, J., concurred.
On application for a rehearing the court, on March 6, 1918, rendered the following supplemental opinion:
Dissenting Opinion
I am of the opinion that there should be a hearing of this matter in this court. Regardless of other questions involved, it seems clear to me that our law does not require the shorthand reporter to furnish a transcript of the proceedings in a criminal case for the purposes of an appeal upon the demand of the appellant and without payment of fee, where the trial judge to whom application is made for an order requiring such a transcript expressly *152 rules that the appellant is not entitled thereto and denies the application therefor, and no order for such a transcript is made by the court to which the appeal is taken. To my mind the intent is clear to vest in the trial court the power to determine to what extent the appellant is entitled to a transcript of the reporter's notes for the purposes of an appeal, the expense of which, when properly ordered, is a county charge, with the right in the court to which the appeal is taken to order a further transcription, if deemed essential to the appellant's rights. It is only where the trial court fails to take any action for a specified time regarding appellant's application that the shorthand reporter may be required to furnish the transcript as demanded, the idea apparently being that such failure of the court to act shall be taken as assent to the application as made. Here the trial court acted, and expressly refused to order the transcript, ruling that appellant was not entitled thereto. And the reporter, who doubtless felt himself bound by the ruling of the superior court in the matter, is held guilty of a breach of statutory duty for not having disregarded such ruling, and is also penalized in costs. The law seems to provide in effect that the compensation of the reporter for such a transcription is to be paid from the county treasury only when the same is, at least in effect, ordered by a court, and I do not see how the reporter here could have received any compensation in this case had he proceeded in the face of the ruling of the court refusing the transcript.
Addendum
Petitioner was granted a writ of mandamus compelling respondent Duffy to transcribe her notes of all the proceedings taken at the trial of petitioner, when as defendant in a criminal action he was convicted of failing to support his minor child, and also compelling respondent McCallum to transcribe his notes of the proceedings of the court on the motion of petitioner, defendant in the action, in arrest of judgment and for a new trial, it appearing that in said action respondent Duffy was acting as the official reporter at the trial and respondent McCallum was acting as official reporter at the hearing of said motion; and it further appearing that said transcripts were regularly demanded by the defendant in aid of his appeal from the judgment and the order denying his motion for a new trial.
In the present matter petitioner seeks a rehearing for the purpose alone of having the judgment so amended as to allow him his costs herein. It is understood that if costs are not legally allowable, the petition should be denied; and if allowable *150 and allowed by the court, that the judgment be amended accordingly.
Costs are allowable by statutory authority only. They are allowed to the plaintiff, of course, in the following cases: ". . . 4. In a special proceeding." (Code Civ. Proc., sec.
In the case of Platnauer v. Superior Court,
The statute as to writs of review makes no mention of costs, leaving the question to be determined under the general provisions as to costs. The reasons given for the decision in the Platnauer case are not applicable here. Besides, inmandamus proceedings there is express authority given for recovering costs. The argument of respondents that "shorthand reporters are governmental agencies of the superior court, which is a governmental agency of the state," and hence should enjoy the immunity given the court in the matter of costs, does not strongly appeal to us. The court in the case cited was exercising a judicial function in a matter wherein it had jurisdiction of the person and subject matter and could decide wrongly or rightly. Here respondents had no judicial function to perform; the duty which the defendant in the criminal action (petitioner here) called upon them to perform was ministerial and its performance was made mandatory by the statute. If it be conceded (and we make no such concession) that section
In Power v. May,
It is ordered that the judgment be amended to read that the petitioner have the writ prayed for and that he have judgment for his costs.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1918. Angellotti, C. J., dissented from the order denying a hearing in the supreme court and rendered the following opinion thereon: