In People v. Varnum (1879) 53 Cal. 630, this court held an untimely appeal taken from an order denying a new trial in a criminal case "must be dismissed."Summary of this case from In re Benoit
Appeal from the District Court of the Fourteenth Judicial District, Placer County.
The defendant was convicted of the crime of murder. He moved for a new trial, which was denied, and he then appealed from the judgment and from the order denying the new trial.
C. A. Tuttle and E. L. Craig, for Appellant.
Attorney-General Hamilton, for Respondent.
The appeal from the order denying the new trial having been taken more than sixty days after the order was made, must be dismissed. ( Penal Code, sec. 1239.)
The defendant, in addition to the plea of not guilty, pleaded a former acquittal. On the trial he introduced in evidence an indictment found against him for the same offense, and an order made by the District Court setting aside the indictment and submitting the case to another grand jury. The prosecution introduced in evidence a notice and motion to set aside the indictment, on the ground that the grand jury had not been legally constituted, and it was admitted that the defendant was in custody when the first indictment was found. This evidence was insufficient to maintain the plea of former acquittal, and the Court did not err in instructing the jury to that effect.
The instructions which the Court refused to give, at the request of the defendant, were fully covered by the charge of the Court, so far as they correctly stated the law applicable to the case.