People v. Majors , 2 Cal. Unrep. 264 ( 1884 )

By the Court.

To an information filed August 27, 1883, charging the defendant with the murder of one Archibald McIntyre, in Santa Clara County, on the 11th of March, 1883, defendant, without a plea of not guilty, pleaded a former judgment of conviction of the same offense. Upon the plea so interposed a trial was had and a verdict rendered for the people. Defendant then moved in arrest of judgment, and also made a motion for a new trial, both of which motions were denied by the court, and thereupon judgment was given against him on the plea. He appeals from the judgment, from the order denying his motion in arrest of judgment, and also from the order refusing him a new trial.

It is clear that there is no authority for the appeal from the judgment nor for that from the order denying the motion in arrest of judgment. Sections 1237 and 1259 of the Penal Code read: —

“ Section 1237. An appeal may be taken by the defendant:—

" 1. From a "final judgment of conviction..

“ 2. From an order denying a motion for a new trial.

“ 3. From an order made after judgment, affecting the substantial rights of the party.”

“Section 1259. Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.”

Section 1237 does not give an appeal from an order denying a motion in arrest of judgment. The appeal from the order is, therefore, without authority, and must be dismissed. So, too, with respect to the appeal from the judgment upon the plea of former conviction. It is obvious that such a judgment is not “a final judgment of conviction.” It only determines that the defendant has not been previously convicted of the offense of which he now stands charged, leaving the question of his conviction or acquittal open, to be determined after a trial. With respect to the appeal from the order denying defendant a new trial, the statute does not contemplate a motion for a new trial until all of the issues of fact have been tried. And inasmuch as the law did not authorize the motion for a new trial made by the appellant in the court below, it results that there can be no appeal from the order denying such a motion.

Appeals dismissed.

Hearing in Bank denied.