Smith v. McCallum

172 P. 408, 36 Cal. App. 143, 1918 Cal. App. LEXIS 500

• Court: California Court of Appeal
• Decided: February 4, 1918
• Docket: Civ. No. 1814.
• Status: Published

Opinions

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 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 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 1239 of the Penal Code. This section refers to an appeal from the judgment and provides that it must be taken at the time judgment is rendered; and also that an appeal from an order after judgment must be taken at the time the order is made. It makes no provision as to when the appeal from an order denying motion for a new trial is to be taken. Section 1182, however, provides that the application must be made before judgment and the order denying the motion must immediately be entered by the clerk in the minutes. The contention is "that an appeal can only be taken under the provisions of section 1239," and as this section makes no mention of an appeal from the order denying the new trial, no appeal lies. But section 1237 of the Penal Code expressly provides: "An appeal may be taken by the defendant: 1. From a final judgment of conviction; 2. From an order denying a motion for a new trial; 3. From any order made after judgment, affecting the substantial rights of the party." The right to appeal is thus clearly given. Section 1239 provides that the appeal may be taken from the judgment in open court at the time it is rendered and from an order made after judgment, but does not mention the order denying motion for new trial, and, of course, does not provide at what time such appeal is to be taken.

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, 48 Cal. 3, 6; In re Adams, 81 Cal. 163, 167, [22 P. 547].) Under sections 1201 and 1202 the motion for a new trial must be made before judgment is pronounced. Under subdivision 1, section 1203, the court may suspend sentence, and in cases arising under sections 270 and 270a (under which petitioner was convicted) the suspension may continue for five years. The bond given by petitioner for the support of his minor child was under section 270b, and by that section the court was also authorized to suspend sentence, but this bond, in our opinion, is not a waiver of petitioner's right to appeal from the order denying his motion for a new trial. In State v. Coolidge,72 Wn. 42, [129 P. 1088], a bond was given by the defendant after conviction in a case such as we have here, and it was there claimed that the bond operated as a waiver of defendant's right to appeal. Said the court: "It may be that a case might arise where the giving of a bond, conditioned for the performance of a judgment, would operate as a waiver of the right to appeal; but it cannot be so held in this case. The verdict still stands, and defendant is entitled to urge such legal defense as he may have thereto." In the case cited no judgment had been entered, but the court made an order, as here, staying proceedings. A motion for a new trial had previously been made and denied.

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, 161 Cal. 118, 120, [118 P. 526]; Clemens v. Gregg,34 Cal.App. 272, [167 P. 299].) We see no reason why this should not be true of appeals in criminal cases. Section 1247 of the Penal Code provides that upon an appeal from an order of the superior court to the district court of appeal in any criminal action where appeal is allowed by law, the defendant must within a given time make application to the trial court, stating the grounds of the appeal and designate the portions of the stenographic reporter's notes upon which defendant relies. It is made the duty of the court, upon such application, to order the transcription made and also the duty of the reporter to file with the clerk such transcription. Everything which this section requires of the defendant was done in this case. Section 1247a makes it the duty of the clerk to deliver copies of the transcription to the parties named, including a copy to the court for its approval, and if no objection is made to the transcription, it is made the duty of the court to approve it and deliver it to the clerk. Provision is made for hearing objections and for approval by the court thereafter. When finally approved and received by the clerk from the judge, the clerk "must immediately transmit the same to the court to which the appeal was taken, and thereupon it shall become a part of the record upon appeal." Section 1246 provides that "upon the appeal being taken, the clerk of the court from which the appeal is taken must," without charge, within twenty days thereafter, transmit to the clerk of the appellate court a typewritten copy of the following papers: The enumerated papers include "the proceedings on motion for arrest of judgment or new trial."

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 1239. It was held in People v.Thompson, 115 Cal. 160, [46 P. 912], that although there was no question raised on an appeal from the judgment as to the instructions, and they were not in fact presented or passed upon, the instructions, nevertheless, may be reviewed upon an appeal from the order, notwithstanding that they might also have been reviewed on an appeal from the judgment if presented on such appeal. Still, as was there held, the Penal Code provides for an appeal from an order denying a new trial (section 1237), and as the motion for a new trial is an independent proceeding, it may happen, as in civil cases, that a judgment is set aside on a motion for a new trial after it had been affirmed on appeal from the judgment, and such was the result in the case cited.

In the case of People v. Irish, 34 Cal.App. 424, [167 P. 900], a case such as this one, sentence was suspended and an appeal taken and heard and judgment affirmed. The opinion does not state from what the appeal was taken, but an examination of the record shows that it was from the order denying a new trial while the sentence remained suspended.

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: