People v. Bowman

Crim. A. No. 24. Apr. 28, 1955.]

THE PEOPLE, Respondent, v. JOHN BOWMAN, Appellant.

COUNSEL

Paul A. Fowler and Thomas C. Parry for Appellant.

Lowell E. Lathrop, District Attorney (San Bernardino), for Respondent.

OPINION

HILLIARD, J.

Defendant, having been convicted after a jury trial on a charge of violating section 246 of the California Vehicle Code, has filed his notice of appeal, and briefs in support thereof.

Respondent moves to dismiss the appeal for irregularity in a substantial respect pursuant to rule 10 of the Rules on Appeal From Municipal Courts and Inferior Courts in Criminal Cases.

Copy of the trial court docket, included in the Record on Appeal in conformity with rule 3, indicates that the jury returned its verdict on or prior to February 28, 1955. On that date counsel for appellant filed a written notice of appeal. Thereafter, on March 1, 1955, judgment of conviction was entered and sentence pronounced; appellant's motion for new trial was made and argued; and the trial court denied the motion for new trial. [132 Cal. App. 2d Supp. 916]

[1] It is apparent that the notice of appeal was premature since rule 2 provides such notice shall be filed with the trial court within five days after the rendition of judgment. Unless so filed within the time required it is void and of no effect. (People v. Wilson, 7 Cal. App. 2d 543 [46 P.2d 229]; Garrett v. Superior Court, 79 Cal. App. 273 [249 P. 871].)

For the reason above stated the motion is granted and the appeal is dismissed.

Coughlin, J., and Mitchell, J., concurred.