People v. Brecker , 20 Cal. App. 205 ( 1912 )

The defendant was convicted of the crime of obtaining from one Bert Romeroni and one James Vernon, on or about the second day of January, 1911, the sum of one hundred and fifty dollars by false and fraudulent pretenses. He appeals both from the judgment and the order denying a new trial.

The attack upon the judgment and the order is based upon the asserted insufficiency of the evidence to justify the verdict of conviction, and certain rulings of the court admitting and rejecting certain evidence.

The attorney-general has submitted a motion to dismiss the appeal upon the ground that the appellant failed to file, within five days after taking the appeal from the judgment and the order, with the clerk of the court in which the action was tried and present to said court "an application . . . stating in general terms the grounds of the appeal, and the points upon which the appellant relies, and designate what portion of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon." (Pen. Code. sec. 1247.)

The resistance to the foregoing motion is based upon an affidavit of the trial judge, filed in this court, setting forth that all the requisites of section 1247 in the respect referred to by the motion were duly complied with. But it will not be necessary to consider the motion or, in this opinion, the questions arising therefrom, viz., whether the law requires the record on appeal to show that the provisions of section 1247 of the Penal Code in the particulars to which the motion relates have been complied with, and, if so, whether, in the absence of such a showing, the affidavit of the trial judge affirming a compliance therewith constitutes competent authentication of the fact; for there is before us no properly authenticated transcription of the record in this cause and, therefore, nothing that we are authorized to review advantageously to the appellant. This point is not included among the grounds upon which the motion to dismiss the appeal is based, but the attorney-general has called our attention to it in his brief, and even if he had failed to do so, about the first duty of a court of appeal in any case is to ascertain whether a record which may be legally reviewed is before it, and if it finds that there is not, there is no other alternative left to it but to dismiss the appeal, or affirm the judgment.

Section 1247 of the Penal Code, among other things, provides that the original and each copy of the transcription of the stenographic reporter's notes ordered by the court to be made shall by the reporter be duly certified under oath to be correct.

Section 1247a of said code provides, inter alia, that the judge shall, unless objection is made to the transcript by either the defendant or the district attorney, within ten days after receipt thereof by him, certify on the transcript that no objection has been made thereto within the time allowed by law, and after so certifying shall immediately redeliver the same to the clerk; or, if objection to the transcript be made, the judge must immediately hear and determine the objection, and, if the objection is found to be good, must correct the same, whereupon he must certify that all objections to the transcript have been heard and determined, and the same corrected in accordance with such determination, and thereupon immediately redeliver the same to the clerk.

The reporter has not in this case certified under oath to the correctness of the transcription of the portion of his notes which the court ordered written up, but has merely annexed to the transcript a naked statement, in the form of a certificate, that said transcript is correct. Nor is the form of the judge's certificate strictly in harmony with the requirements of section 1247a, it containing no statement either that no objections were made to the transcript, or, if any were made, the same were heard and determined and the transcript accordingly corrected. But waiving any question as to the sufficiency of the judge's certificate, it is obvious that the reporter's certificate is altogether insufficient and does not involve that authentication of the transcript of the proceedings which the statute imperatively requires. Under the present method of taking appeals in criminal cases, the judge's certificate, even if such a one as the judge's certificate here may be said to be in substantial compliance with the statute, must be held to be a mere nullity, so far as any effect it may have as an authentication of the record on appeal, where, as is true here, the phonographic reporter's certificate is wanting in one of the most vital of the requisites of a proper or legal authentication.

The supreme court of this state has uniformly held that the proceedings in a trial court cannot be reviewed on appeal unless such proceedings have been authenticated in the mode pointed out by law or the rules of the courts of appeal. (People v. Martin, 32 Cal. 91; People v. Ferguson, 34 Cal. 309 ; People v. Armstrong, 44 Cal. 326; People v. Long, 121 Cal. 495, [53 P. 1097]; People v. Terrill, 131 Cal. 112, [63 P. 141]; People v. Schulz, 14 Cal.App. 106, 109, [111 P. 271].)

In the Schulz case although the question did not directly arise, the court of appeal of the first district, referring to the failure of the stenographer to certify under oath to the correctness of his transcript, says: "Even if appellant was entitled to adopt the method prescribed by sections 1247 and 1247a of the Penal Code, for bringing to this court the evidence in the case, which we do not believe, he has not complied with the provisions of said sections." The intimation from the foregong is that, in order to render the record made up according to the method prescribed by sections 1247 and 1247a of the Penal Code reviewable on appeal, there must be among other requisites, a certificate under oath by the phonographic reporter that the transcription of the portion of his notes ordered transcribed by the court is correct.

But there can be no doubt that the provision of section 1247 relating to the manner in which the reporter shall authenticate the transcription of his notes is mandatory and that anything short of the authentication so prescribed amounts to a failure to comply with an imperative command of the statute. If the authentication may be held sufficient without the oath of the reporter, then with equal reason may it be held that the mere subscription of the reporter's name to the transcript without a certificate of any kind would be sufficient to satisfy the statute. The authentication of the record on appeal of the proceedings of the trial court constitutes the evidence from which the reviewing court may determine whether the proceedings were had in the court below, and the legislature may contrive and provide any reasonable method of furnishing such evidence; and when once the legislature prescribes a method for proving that the proceedings which are taken to a court of appeal for review have been had in the trial court, then any substantial departure from that method will render the appeal abortive.

However much it may always be desirable to dispose of cases brought to the appellate courts upon their merits, we are not at liberty to ignore or disregard the plain mandates of the statute as to the method, of proving to such courts that the record on appeal contains a correct reproduction of the proceedings which it is desired shall be reviewed.

The judgment and order must be affirmed, and it is so ordered.

Burnett, J., and Chipman, P. J., concurred.