People v. Brooks

35 P.2d 583, 140 Cal. App. 480, 1934 Cal. App. LEXIS 399

Opinion

MARKS, Acting P. J.

By an amended information filed by the district attorney of Tulare County, appellant was charged with the crime of an assault upon the person of another by means of force likely to produce great bodily injury. This appeal is from the judgment and from an order denying probation.

An order denying probation is not an appealable order. (People v. Freithofer, 103 Cal. App. 165 [284 Pac. 484].) Furthermore, there is no such order in the record. The clerk’s transcript contains an order granting appellant probation.

The order granting probation contains the following: “The Court . . . doth order that the imposition of sentence herein be suspended for two years,” with the terms of the probation particularly stated. There is no judgment in the record and none was pronounced on appellant. Therefore, the attempted appeal therefrom is not effectual for any purpose. (People v. Von Eckartsberg, 133 Cal. App. 1 [23 Pac. (2d) 819].)

The attorney-general has moved to dismiss the appeal on the ground that the order granting probation is not an appealable order. The soundness of this position is shown by the following cases: People v. Payne, 106 Cal. App. 609 [289 Pac. 909]; People v. De Voe, 123 Cal. App. 233 [11 Pac. (2d) 26]; People v. Patello, 125 Cal. App. 480 [13 Pac. (2d) 1068]; People v. Noone, 132 Cal. App. 89 [22 Pac. (2d) 284]; People v. Von Eckartsberg, supra.

The appeal is dismissed.

Jennings, J., and Griffin, J., pro tem., concurred.