People v. Morasco

38 P. 423, 4 Cal. Unrep. 889

Opinion

PER CURIAM.

The defendant in this ease was convicted of murder in the first degree and sentenced to death. His appeal is from the judgment and from an order denying his motion for a new trial. We are furnished with an affidavit of the county clerk of the county in which the case was tried, which shows that a copy of the record was served on “the attorney of record” of the defendant on the twentieth day of August, 1894, and we are asked upon this affidavit to affirm the judgment and order appealed from, upon the ground that no brief has been filed in behalf of the defendant, and no counsel has appeared to suggest any error in the proceedings. The affidavit, however, is insufficient. The gentleman upon whom the record was served is not the attorney who acted as counsel for the defendant at the time of his arraignment and plea or during the trial, and his name is not signed to the notice of appeal. And, besides, we should not feel justified, in a capital case, in affirming the judgment without an examination of the record, merely because no counsel has appeared in support of the appeal by brief or oral argument. In view of the gravity of the case, we have directed further notice to be given to the attorneys who signed the notice of appeal, and, they having failed to respond, we have examined the record, in which we discover no error. The judgment and order of the superior court are therefore affirmed and the cause remanded, with directions to the superior court to take the proceedings necessary for the execution of its judgment.