The defendant was convicted of the crime of manslaughter under an information charging him with the crime of murder.

The transcript does not show that an appeal has been taken from either the judgment or the order denying defendant's motion for a new trial.

A certificate of the clerk of the trial court, on file in this court, discloses "that there never has been, nor is there now, any written Notice of Appeal in said case of the People of the State of California vs. John Reese, Defendant, entered in the Clerk's Register in my office, and that no Notice of Appeal of any kind whatever is to be found in any of the records or papers in said case of the People of the State of California vs. John Reese, Defendant, in my office."

Judgment in this case was pronounced on May 12, 1909, and, as section 1239 of the Penal Code (Stats. 1909, p. 1086), which provides that an appeal from a judgment in a criminal case 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 the same," did not go into effect until June 21, 1909, it is very plain that the defendant, in order to have succeeded in taking an appeal, should have served and filed a written notice of the same, as prescribed by section1240 of the Penal Code, as that section read prior to the change in the method of taking appeals in criminal cases. Having failed to pursue the course prescribed for appealing from the judgment at the *Page 329 time judgment was rendered against him, this court is without jurisdiction to review the record filed here.

There is in fact no appeal here in any sense of the proposition, for there is not any evidence of even an attempt to take an appeal, while, on the contrary, the certificate of the clerk of the court below shows, as we have seen, that there is nothing in the records of the cause disclosing that any attempt was made to take any appeal whatsoever.

The appellant has not filed a brief, or points and authorities, and this omission would alone be sufficient to justify the dismissal of an appeal, if one had been taken. (Rule 5, supreme court.)

From the foregoing, it is clear that there is nothing left for this court to do but to order the transcript or record herein stricken from the files of this court, and such is the order.

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