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District Court of Appeal, Fourth District, California.


Cr. 166.

Decided: May 16, 1934

Fred Lehr, in pro. per. U. S. Webb, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the People.

This is a motion to dismiss an appeal taken by the defendant after conviction of burglary in the second degree. The motion to dismiss was made on the ground that the appeal was not taken within the time prescribed in section 1239 of the Penal Code and on the ground that a statement of the grounds of appeal was not filed within five days after giving notice of appeal, as provided for in rule II, section 7, of the rules governing this court.

It appears from the transcript that judgment was pronounced on March 9, 1934, and that a notice of appeal and a statement of the grounds of the appeal, each dated March 12, 1934, were filed on March 21, 1934. The record contains nothing to indicate that any other notice of appeal was given and the appellant concedes that there was none. The notice of appeal was filed too late and is ineffectual for any purpose. Pen. Code, § 1239; People v. Payne, 106 Cal. App. 609, 289 P. 909; People v. Sullivan, 123 Cal. App. 436, 11 P.(2d) 420.

We may add that we have read the opening brief already filed by the appellant and, with one exception, the points raised are entirely without merit. One technical error in procedure is pointed out, but it fully appears that this error was corrected in the trial court and that the appellant suffered no prejudice thereby or therefrom. An examination of the entire record, including the evidence, fails to reveal any miscarriage of justice.

The motion is granted and the appeal is dismissed.

BARNARD, Presiding Justice.

We concur: MARKS, J.; JENNINGS, J.

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