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District Court of Appeal, Second District, Division 2, California.


Cr. 3617.

Decided: August 06, 1942

Albert Flaxman, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for respondent.

Respondent's motion to dismiss the appeal having been by stipulation of the parties submitted for decision, and it appearing from the record that appellant was on November 25, 1940, convicted of a felony, towit, escape from the legal custody of an officer (Pen.Code, § 107) and was sentenced to state prison for the term prescribed by law, and that the execution of his sentence was suspended and probation granted on the same day; and it further appearing that thereafter on the 23rd day of March, 1942, probation was revoked and thereafter, on April 13, 1942, the judgment of November 25, 1940, was ordered in full force and effect, from which order appellant gave notice of appeal on the 17th day of April, 1942; and it further appearing from appellant's brief that no attack is made upon the order of April 13, 1942, and that his only argument is with respect to the validity of the judgment of November 25, 1940, from which no appeal was ever taken;

Now, therefore, it is hereby ordered and adjudged that the motion to dismiss is granted and that the appeal be and it is hereby dismissed. Pen.Code, § 1239; People v. Lewis, 219 Cal. 410, 27 P.2d 73; In re Herbert Collins, 8 Cal.App. 367, 370, 97 P. 188.