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District Court of Appeal, Fourth District, California.


Cr. 345.

Decided: March 25, 1937

J. Q. Gilchrist, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.

The appellant was convicted of the offense of grand theft and judgment was pronounced on January 8, 1937. Oral notice of appeal was given on that date. A written notice of appeal and a request for the preparation of a transcript were filed on January 15, 1937. The respondent has moved to dismiss the appeal on the ground that the same was not perfected within the time and in the manner required by rule 2, section 7, of the Rules of the Supreme Court and District Courts of Appeal.

Compliance with the rule in question is mandatory and it has frequently been held that an appeal must be dismissed when the rule has not been complied with. People v. Lewis, 219 Cal. 410, 27 P.(2d) 73, and cases there cited.

The appellant concedes that this court has the power to dismiss this appeal, but argues that the granting or denial of the motion is entirely within the discretion of the court. It is argued that this discretion should be exercised in favor of this appellant because no injury could thereby be inflicted upon any of the parties and because the delay in filing the application for a transcript in this case was so slight as to be negligible. Assuming, but by no means holding, that this court has any discretion in the matter, no reasonable excuse for the delay is offered and, so far as shown by the record, the requirements of the rule in question have not yet been complied with. While an application for a transcript was filed on January 15, 1937, this instrument fails to state in general terms the grounds of the appeal and is entirely silent as to the points upon which the appellant relies.

The motion to dismiss the appeal is granted, and the appeal is dismissed.

BARNARD, Presiding Justice.

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

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