Garrett v. Superior Court

As shown by the return made by respondent to the writ of review which we issued in this proceeding, petitioner was tried upon a criminal complaint ir a recorder’s court. The trial was by jury and resulted in the return of a verdict of guilty on March 5, 1926. If we are to consider the docket of the recorder, copy of which was filed with respondent court and which appears as a part of the record brought to us in this proceeding, it appears that no judgment was pronounced in the action by the recorder. The docket shows, under the date just mentioned: “Jury returned verdict of guilty. Notice of appeal by Atty. Cook for defense.” On the next day petitioner filed with the recorder a written notice of appeal in which it was stated that she appealed to respondent court “from a judgment heretofore made and entered in the above-entitled action on the 5th day of March, 1926.” Pursuant to the appeal thus taken, or, at least, attempted to be taken, the cause came on for trial in respondent court, after an order had been made reversing “the judgment of conviction” in the recorder’s court and granting a new trial in respondent court. At the inception of the trial, and before a jury was called, petitioner objected that the court had no jurisdiction of the action for the

Petitioner makes here the same point upon which she grounded her objection in respondent court. She says, specifically, that her attempted appeal was abortive for the reason that it was in effect an effort to appeal from the verdict of a jury, and this even though her written notice of appeal recited that she appealed from a judgment. [1] Respondent essays to meet this argument by the counter contention that the writ of review will not lie to review the judgment of a justice’s or recorder’s court after appeal therefrom to the superior court, citing the well-known case of Roberts v. Police Court, 185 Cal. 65 [ 195 Pac. 1053 ]. We think this position of respondent is untenable. The proceeding here is in our opinion an attack upon the jurisdiction of respondent court. The direct question is presented whether the notice of appeal given by petitioner transported the cause in which she was defendant from the recorder’s court to the appellate tribunal, respondent court, for its consideration.

The point is also made by respondent that the docket of the recorder is not before us, despite the fact that a copy of it was filed with respondent court and is incorporated in the record returned to us under the writ heretofore issued. The determination of this point involves considerations of a complex and far-reaching character, imposing upon us, as it does, the duty of construing some of the latest enactments of the legislature.

Section 3 of an act of the legislature passed in 1858 reads as follows: “The appeal to the county court from the judgment of a justice’s, recorder’s, mayor’s, or police judge’s court, shall be heard upon a statement of the case settled by the justice, police judge, recorder, or mayor, embodying the evidence, and such rulings of the court as are excepted to” (Stats. 1858, p. 218).

Appeals from recorder’s courts in criminal eases for many years have been governed by the provisions of the Penal Code relating to appeals from justice’s courts (Deering’s Gen. Laws 1923, Act 5233, secs. 806, 882). Section

Section 1467 of the Penal Code was also amended in 1925 [Stats. 1925, p. 950], but the amendments then incorporated in it make no substantial change in its import in so far as it bears upon any question involved in the present proceeding. The section now reads: “The appeal may be taken, heard and determined as provided in title nine, part two of this code, except that such appeal must be taken within fifteen days after the judgment is rendered in a justice’s or police court, or entered in a municipal court, or within ten days after the order is made from which the appeal is taken, by filing a written notice of appeal.”

From 1880 to 1925 section 1468 of the same code read as follows: “The appeal to the superior court from the judgment of a justice’s or police court is heard upon a statement of the case settled by the justice or police judge, embodying such rulings of the court as are excepted to, which statement must be filed with and settled by the court within ten days after filing notice of appeal.”

Section 1468 was deprived of its former semblance by amendment adopted in 1925. It now reads: “The appeal to the superior court from a judgment of a municipal court, or from the judgment of a justice’s or police court, shall be heard upon a statement of the case settled by the judge of the municipal court or by the justice or police judge. The statement must contain the grounds upon which the party intends to rely upon the appeal, and so much of the evidence as may be necessary to explain the grounds. The statement must be prepared by the appellant and filed with the court, and a copy served upon the opposite party, within five days after the filing of the notice of appeal. The respondent may, within five days after the service of the copy and the filing of the proposed

In dealing with a case in which there had been an appeal from a police court the supreme court said: ‘1 There is nothing in the point that the County Court could not entertain the appeal except upon a statement prepared as provided in section 3, page 218, of the statutes of 1858.

. . . The section in question does not apply to cases where the rulings of the Court, alleged to be erroneous, appear upon the face of the judgment roll. Where the errors do not appear upon the face of the judgment roll a statement is made necessary because the errors can in no other way, except by a trial de novo, be brought to the notice of the appellate court” (People v. Maguire, 26 Cal. 635 ). In a later case an individual appealed from a judgment of conviction entered against him in a justice’s court. The ease came before the supreme court and the following appears in the statement of facts contained in the opinion of that tribunal: “For the purposes of the appeal [from the. justice’s court], however, [the appellant] prepared no statement embodying the evidence and such rulings of the Court as had been excepted to by him; on the contrary, he furnished no papers, except the docket of the Justice.” The following appears later in the opinion: “If the County Court, as it seems to have done, considered- that-no appeal can be heard unless accompanied by the statement for which the statute provides, it was error. The statute must receive a sensible construction. There may be cases in which no statement is needed for the purposes of the appeal. Suppose a Justice of the Peace should sentence a defendant to the State Prison for petit larceny or assault and battery, or should try him without a jury, notwithstanding one was demanded, and it so appeared by

The amendments of 1925 to sections 1466, 1467, and 1468 of the Penal Code, although probably framed with an eye principally to the erection of the new municipal court created in that year (Stats. 1925, p. 648), have also worked a change in the law concerning appeals from justice’s courts, and therefore from recorder’s courts, for sections 806 and 882 of Act 5233, cited above, were not amended in the year named.

The appeal of petitioner from the recorder’s court to the superior court, which is the subject of scrutiny in the present proceeding, was perfected long after the above-mentioned amendments of 1925 became effective, and the procedure governing it must be found in the language of those amendménts. Under the change in the law then effected, was the docket of the recorder a part of the record on appeal? Can we consider the docket here? To what extent, if any, is the rule of People v. Maguire, supra, and Morley v. Elkins, supra, abrogated by the amendments l

According to the strict letter of section 1468, an appeal is futile without a statement of the case. “If no statement is filed and served as herein provided, the appeal is ineffectual for any purpose, and shall be deemed dismissed, and the judgment or order appealed from shall be enforced as if no appeal had been taken.” It may be argued that this language admits of no such thing as an' appeal “on the judgment-roll alone,” to adopt the parlance of the eases relating to appeals from the superior court. This is equivalent to the assertion that under the procedure prescribed by section 1468 there is no such thing as a “judgment-roll,” as that term is understood when we have in contemplation the question of an appeal from the supe

Section 975 of the Code of Civil Procedure, which relates to appeals to the superior court in civil cases, provides for a statement of the case and requires: “The statement must contain the grounds upon which the party intends to rely upon the appeal, and so much of the evidence, as may be necessary to explain the grounds, and no more.” The section provides further: “The statement . . . with a copy of the docket of the justice or judge, and all motions filed with him by the parties, during the trial and the notice of appeal, may be used on the hearing of the appeal before the superior court.” Section 975 was not amended iu 1925, but section 984 of the same code, a new sectior adopted in that year, provides that section 975, along witl others, “are hereby made applicable to appeals from municipal courts.” Why was section 975 permitted to stand in its reference to the docket and to motions filed with th( justice, while such a reference was omitted from th< amended section 1468 of the Penal Code? It may b< argued that it was only because the legislature intendee to nrovide in criminal cases a method of certifying tin

We have arrived at a conclusion opposed to that for which respondent contends, and we now proceed to state the arguments which in our opinion support it. It will be remembered that section 1467 of the Penal Code provides: “The appeal may be taken, heard and determined as provided in title nine, part two of this code,” with certain exceptions which are not material here. Section 1246 of the same code, which is comprised within the title thus referred to, and which relates to appeals to the supreme court, reads: “Upon the appeal being taken, the clerk of the court from which the appeal is taken must, without charge, within twenty days thereafter transmit to the clerk of the appellate court a typewritten copy of the following papers: 1. The indictment, information or accusation; 2. A copy of the minutes of the plea; 3. A copy of the minutes of the demurrer; 4. A copy of the demurrer; 5. A copy of the minutes of the trial; 6. A copy of other minutes of the action, including the proceedings on motion for arrest of judgment or new trial; 7. A copy of the written charges given by the court to the jury, or refused, or modified and given; also, a transcript of any oral charge; 8. A copy of the judgment; 9. Any written or printed exhibits offered in evidence at the trial of the cause. The clerk of the court from which the appeal is taken must also, within the time above specified, deliver, without charge, to the defendant or his attorney, upon application therefor, a carbon copy of the original transmitted to the clerk of the appellate court; and must also deliver, without charge, a carbon copy to the district attorney upon his application therefor.”

Whether the provisions of section 1246 have been imported by section 1467 into the appellate practice affecting municipal, justices’, and recorder’s courts is a question of some nicety. The latter section imports those parts of title nine only which prescribe the methods whereby an appeal may be= “taken, heard and [or] determined.” It is so manifest as not to require argument that the interpolation here of the word “or” is properly made, and we dismiss the point as concluded. Viewing separately, then, the words just quoted from the section, it is apparent that

We continue our analysis of section 1246. The enactment provides that the clerk must transmit to the appellate court the “indictment, information or accusation,” while it is provided in another section that criminal proceedings in a justice’s court “must be commenced by complaint” (Pen. Code, sec. 1426). This difference in terminology could not, we think, prevent the importation of section 1246 by means of section 1467, especially as the difference is more apparent than real. A criminal complaint is defined to be the allegation in writing made to a court or magistrate that a person has been guilty of some designated offense” (Pen. Code, sec. 806), but the definition is embodied in a chapter of the code which is entitled “The Information,” and other sections in it employ the word “information,” apparently interchangeably with the word “complaint.”

[2] From all these reflections it appears to us that section 1246 of the Penal Code must be looked to as prescribing a part of the procedure on appeal from municipal and justices’ courts, and therefore from recorder’s courts, although it was said in Matter of Howell, supra, that all of title nine of part two of the Penal Code is not so to be regarded. Section 1467 of that code, in the respect in which it has been under examination here, has never been construed by the courts of review of the state, although it has been in its present form, in its provision that appeals to the superior court are “taken, heard and determined as provided in title nine, part two” of the code, ever since its enactment in 1872. The question is here directly presented, and in view of the amendments of 1925 to sections 1466-1468 of the code, formulated principally because of the creation of the new municipal' courts, we have thought it advisable to treat it with great minuteness.

[3] It becomes material now to re-examine section 1468, and to construe it in connection with the section which—section 1246—accompanies it as a prescription of the practice upon appeals to the superior court. It is plain now, we think, that under section 1468 the statement of the ease is the equivalent of a bill of exceptions, with the difference, at least, that the statement must contain “the grounds upon which the party [appealing] intends to rely upon the appeal.” And we are satisfied that in

[4] We conclude that, in the present instance, the docket of the recorder’s court is before us. As the docket shows no action of the recorder—no judgment—following upon the verdict of the jury, it seems that the appeal attempted to be perfected by petitioner was premature and that the cause never was subjected legally to the jurisdiction of respondent court. We do not see how we can presume in aid of the docket of the recorder that a judgment was entered by him, merely because petitioner attempted to appeal from a judgment, nor do we see how petitioner can be estopped by the form of her notice of appeal to assert that no judgment was entered. None of the elements of an estoppel seem to be presented by the record. It seems that the cause in which petitioner is defendant is still within the jurisdiction of the recorder and that an appropriate means must be found, even at this late day, whereby to pronounce judgment upon the verdict rendered in' his court. •

Judgment annulled.

Finlayson, P. J., and Craig, J., concurred.