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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Maxine Caroline CHIUMINATTA, Defendant and Appellant.

Cr. 1168.

Decided: November 29, 1957

Hennigan, Ryneal & Nixen, Riverside, for appellant. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

The defendant was indicted by the grand jury on three counts of perjury. In the first count she was charged with falsely swearing to a complaint charging her husband with a violation of section 245 of the Penal Code. In the second count she was charged with falsely swearing at the preliminary hearing of the case against her husband that her husband, on January 27, 1957, had hit her about the face and head while she lay on the floor and had dragged her through the house by her hair. In a third count it was charged that she wilfully committed perjury at the trial of her husband in the Superior Court by falsely testifying that on that occasion her husband did not hit her about the face and head while she was on the floor, and that he had not dragged her through the house by her hair, when she knew this testimony was false and untrue.

The defendant pleaded not guilty to each count and on motion of the district attorney the first count of the indictment was dismissed. At the time set for trial it was stipulated that the cause be tried by the court without a jury, and that it be submitted on the transcript of the proceeding before the grand jury. The court found the defendant not guilty on the second count of the indictment and guilty on the third count. A probation officer's report was ordered. At the time set for pronouncing judgment the court ordered that further proceedings be stayed for the purpose of granting probation, and granted probation to the defendant on the conditions that upon her release she seek psychiatric treatment, that she not leave the state, that she violate no law, and that she report to the probation officer once a month. The defendant, through her counsel, filed notice that she ‘appeals from the judgment of conviction in this action’. A request was also filed that ‘in addition to the normal reporter's transcript that said transcript include the argument of the district attorney at the conclusion of the case’. The record shows no request that the transcript of the proceedings before the grand jury, which was the only evidence produced before the trial court, be included in the record. No transcript of those proceedings has been furnished to this court or made a part of the record before us.

The sole point raised on the appeal is that the evidence was not sufficient to prove a corpus delicti in this case or to sustain the conviction of the defendant. It is argued that the evidence was not sufficient to meet the requirement of section 1103a of the Penal Code, which provides that perjury must be proved by the testimony of two witnesses or of one witness and corroborating circumstances; and that there was no direct evidence as to which of the conflicting statements made by the defendant was in fact true.

It has frequently been held that where no final judgment has been entered a purported appeal from the judgment must be dismissed. People v. Guerrero, 22 Cal.2d 183, 137 P.2d 21; People v. Leach, 90 Cal.App.2d 667, 203 P.2d 544. Section 1237 of the Penal Code giving a right of appeal from a final judgment, was amended in 1951 to provide that an order granting probation shall be deemed to be a final judgment within the meaning of that section. This appears to mean that an order granting probation is now an order from which an appeal may be taken. It does not necessarily follow however that this was intended to mean that the appellant need not appeal from that order but may elect to appeal from a judgment which was never entered. Instead of appealing from that order the defendant here attempted to appeal from a judgment when no such judgment had been entered.

A further consideration is that while we are asked to reverse the conviction because of the insufficiency of the evidence there is no record before us which in any way discloses what evidence was before the trial court. Where insufficiency of the evidence is claimed it is incumbent upon an appellant to furnish a record from which the necessary facts can be determined. There being no evidence in the record before us to support the sole contention made, the usual presumptions in support of the action of the trial court apply.

The purported appeal here taken is dismissed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.