Opinion
Rehearing Denied March 25, 1931
Hearing Granted by Supreme Court April 13, 1931.
Appeal from Superior Court, Kern County; Robert B. Lambert, Judge.
Odell Malone and another were convicted of burglary, and they appeal. On motion to dismiss appeal.
Motion denied.
COUNSEL
Rowen, Irwin and W.C. Dorris, all of Bakersfield, for appellants.
U.S. Webb, Atty. Gen., and John D. Richer, Deputy Atty. Gen., for the People.
OPINION
LAMBERSON, Justice pro tem.
Each of the defendants was convicted of the crime of burglary in the first degree and sentenced to a term of imprisonment in the state prison. Judgment was pronounced on July 15, 1930, and oral notice of appeal was given the same day. No written notice of appeal was filed. On Monday, July 21, 1930, six days after pronouncement of judgment, the notice required by section 7 of rule II of the Judicial Council, promulgated for the Supreme Court and District Courts of Appeal, was filed. Said rule provides in part as follows: "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 upon 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."
This court will take judicial notice of the fact that July 20, 1930, the fifth day after the giving of notice of appeal, fell on Sunday.
The provisions of the rule of the Judicial Council above cited follow substantially the language theretofore used in section 1247 of the Penal Code prior to its repeal in 1927 (St.1927, p. 1048), and are to be interpreted in the same manner. The provisions of that section and of the rule of the Judicial Council have been held to be mandatory in effect. People v. Riga, 104 Cal.App. 477, 285 P. 1069; People v. Shaw, 81 Cal.App. 312, 253 P. 747. In the latter case it was held that even though the objection is not raised by the respondent, the court would have no jurisdiction to proceed if it should appear to the court that the appellant has failed to comply with the provisions of section 1247 of the Penal Code.
In none of the cases, however, do we find that the question which has arisen here was before the court.
Section 12 of the Political Code provides as follows: "The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded."
Section 13 of the Political Code provides: "Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law, or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed."
Like provisions are also contained in the Civil Code and Code of Civil Procedure, and section 4480 of the Political Code says that "with relation to each other, the provisions of the four codes must be construed *** as though all such codes had been passed at the same moment of time, and were parts of the same statute."
An examination of the California cases discloses that generally speaking when the last day of performance of an act provided by law falls on a Sunday or a holiday, that day is excluded in the computation of time and the act may be performed on the next succeeding day. It has been so applied in the case of service of notice of appeal (Estate of Rose, 63 Cal. 346), in the case of filing an undertaking on appeal (Robinson v. Templar Lodge, etc., 114 Cal. 41, 45 P. 998; Rauer’s Law, etc., Co. v. Standley, 3 Cal.App. 44, 84 P. 214), to the service or presentation of a bill of exceptions (Derr v. Busick, 63 Cal.App. 134, 218 P. 280), to the filing of points and authorities upon appeal (Troy, etc., Co., Ltd., v. Drivers’ etc., Co., 13 Cal.App. 115, 109 P. 36), to an application for relief from a judgment made under section 473 of the Code of Civil Procedure (Bell v. Krauss, 169 Cal. 387, 146 P. 874), and to the time for commencing an action to foreclose a mechanic’s lien (Mox v. Leventhal, 89 Cal.App. 253, 264 P. 562).
Those of the above cases which relate to the perfecting of appeals are peculiarly applicable to the condition under consideration, because they cover similar situations, although they are civil and not criminal cases.
In the case of People v. Preciado, 31 Cal.App. 519, 160 P. 1090, it was said, quoting from Estate of Nelson, 128 Cal. 242, 60 P. 772: " ‘The right of appeal is conferred by the Constitution, and statutes and rules of procedure for its exercise are to be liberally construed. We are not disposed to dismiss an appeal upon grounds that are purely technical, where there has been no violation or disregard of any express rule of procedure.’ "
In the case of People v. Bryant, 207 Cal. 450, 278 P. 1025, involving a motion for dismissal of a criminal appeal under section 1247 of the Penal Code, the court said: "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."
The outstanding exception to the general rule hereinbefore stated is found in the interpretation by the courts of that part of section 660 of the Code of Civil Procedure, which provides in substance that the power of the court to pass upon a motion for a new trial shall expire within two months after the verdict of the jury or service on the moving party of notice of the entry of the judgment, and that if such motion is not determined within said two months the effect shall be a denial of the motion, without further order of the court. This provision constitutes a limitation upon the power of the court and is to be distinguished from the rules governing the procedure to be followed by the parties to the action. No particular stress is to be laid upon the use of the word "within," because an examination of the cases hereinbefore cited, particularly those relating to the service of notice of appeal and the filing of an undertaking on appeal, discloses that the word "within" was used in the sections of the Code of Civil Procedure under consideration. Section 939 of the Code of Civil Procedure provides that "an appeal may be taken from any judgment or order of a superior court *** within sixty days from the entry of said judgment or order." Section 940 of the Code of Civil Procedure formerly provided in part as follows: "The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed. ***"
We are of the opinion that the provisions of the Political Code hereinbefore cited are applicable to the filing of the notice and application prescribed by section 7 of rule II of the rules of the Judicial Council, that each of the appellants acted in substantial compliance with said rule, and that the motion to dismiss the appeal should be denied. It is so ordered.
We concur: BARNARD, P.J., JENNINGS, J.