PEOPLE v. MEGUGORAC (1938)

This is a motion by respondent to dismiss the appeal on the ground that appellant failed to file within five days after giving notice of appeal with the clerk and present to the trial court an application designating the portions of the phonographic reporter's notes necessary to be transcribed to fairly present the points he desired to urge on appeal, as required by section 7, rule II, Rules for the Supreme Court and District Courts of Appeal, 213 Cal. xxxix.

The record disclosed that on December 20, 1937, appellant gave oral notice of appeal from a judgment pronouncing him guilty of murder in the first degree and from an order denying his motion for a new trial. No application designating the portions of the phonographic reporter's notes necessary to be transcribed was filed until January 6, 1938, seventeen days subsequent to the notice of appeal.

This is the sole question presented for determination: Does a failure to file with the clerk and present an application to the trial court designating the portions of the phonographic reporter's notes necessary to be transcribed on appeal within the time prescribed in section 7 of rule II, supra, deprive the appellate court of jurisdiction to hear the appeal?

This question must be answered in the affirmative. Compliance with the requirement of section 7, rule II, as above set forth, is a jurisdictional prerequisite to the right of appellant to have his case heard by the appellate court on its merits. The rule is thus stated in People v. Lewis, 219 Cal. 410, 414, 27 P.2d 73, 74, by Mr. Justice Seawell: “Not only must the notice of appeal be filed in time, but a defendant who appeals from a judgment of conviction must, within five days after giving notice of appeal, file with the clerk and present to the trial court an application stating in general terms the grounds of his appeal and the points upon which he relies, and must designate the portions of the reporter's notes necessary to be transcribed. Where the defendant fails to conform with this rule (rule II, § 7, Rules of Supreme Court and District Courts of Appeal), the appellate court is without jurisdiction to consider his appeal [citing cases].” (Italics ours.)

Therefore, since appellant has failed to comply with the provisions of section 7, rule II, mentioned above, the appeal is dismissed.

I dissent. The statement of the grounds of the appeal was filed December 27, 1937, within the time set by the rule, the two days immediately preceding having been holidays. Section 7 of rule II provides that the phonographic reporter shall file with the clerk a transcription of his notes within twenty days after the filing of the application. Section 8 of rule II provides that proposed corrections of the transcription may be made within five days “after the filing of the same with the clerk by the reporter.” This section also provides for a hearing on the proposed corrections and a certification by the judge. Thereafter the certified transcript shall be transmitted to the court to which the appeal was taken. In the case before us the reporter's transcript was certified by the reporter on January 10, 1938, served upon the district attorney on January 10, 1938, and upon counsel for appellant on January 12, 1938. It was certified by the judge on January 18, 1938, and filed in this court on January 24, 1938. Appellant omitted to designate on December 27, 1937, the portions of the phonographic reporter's notes which should be transcribed to fairly present the points relied upon. The designation was supplied on January 6, 1938, at which time the appellant requested a transcription of all of the evidence including the objections of counsel and rulings of the court thereon.

Section 7 of rule II provides: “Upon an appeal by the defendant from a judgment of conviction or from an order denying his motion for a new trial, or from an order made after judgment, or upon an appeal by the people from an order granting a new trial, or from an order setting aside an indictment, information, or accusation, or from an order made after judgment, the appellant must, within five days after giving notice of the appeal, file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal shall be dismissed; provided, that the appeal shall not be dismissed for any defect in the statement of such grounds or points which does not affect the substantial rights of the respondent.” The appellant did in fact comply with that part of the rule requiring the filing of a statement of the grounds of the appeal, but delayed complying with the portion of the rule requiring a designation of the portions of the reporter's notes which should be transcribed. In People v. Bryant, 207 Cal. 450, 278 P. 1025, the appellant designated the portions of the phonographic reporter's notes to be transcribed, together with an enumeration of various matters required on the appeal such as copies of the indictment and instructions to the jury, but did not state the grounds of the appeal. The court held that the appellant had made a substantial compliance with section 1247 of the Penal Code as then in force, which contained provisions substantially the same as those contained in section 7 of rule II. It was pointed out that the provision was for the benefit of the appellate court to aid it in deciding the points raised upon appeal, and that no one else was prejudiced by the omission on the part of the appellant. In the case now before us it is manifest that no one has been prejudiced, and that the delay in the designation of the portions of the reporter's notes to be transcribed has not affected the substantial rights of any one. As said in the Bryant Case, “It is the policy of this court, of course, to hear appeals upon the merits and to avoid, if possible, all forfeiture of substantial rights upon technicalities.” It is my opinion that the appellant has made substantial compliance with rule II; that this court has jurisdiction to hear the appeal on the merits and should do so in the interest of justice.

McCOMB, Justice.

I concur: CRAIL, P. J