People v. Martiz, Cr. 3051

CourtCalifornia Court of Appeals
Citation279 P.2d 568,130 Cal.App.2d 602
Decision Date07 February 1955
Docket NumberCr. 3051
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Artis MARTIZ, Defendant and Appellant.

Page 568

279 P.2d 568
130 Cal.App.2d 602
The PEOPLE of the State of California, Plaintiff and Respondent,
Artis MARTIZ, Defendant and Appellant.
Cr. 3051.
District Court of Appeal, First District, Division 1, California.
Feb. 7, 1955.

[130 Cal.App.2d 603] Artis Martiz, in pro. per.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., San Francisco, for respondent.

PETERS, Presiding Justice.

By information Artis Martiz was charged in two counts with having violated section 11500 of the Health and Safety Code, that is, that on January 4, 1954, and again on January 5, 1954, he had unlawfully sold and furnished narcotics. One Willie Scott was jointly charged as to the count relating to January 4, 1954, and each accused was charged with a prior conviction. Scott pleaded guilty, but Martiz, although admitting the prior, pleaded not guilty to the two main charges. The jury found Martiz guilty on both counts. Judgment and sentence were entered April 8, 1954. On June 18, 1954, Martiz filed a notice of appeal from the judgment. Rule 31 of the Rules on Appeal requires that in criminal cases a written notice of appeal must be filed 'with the clerk of the superior court within 10 days after the rendition of the judgment'. The filing of such notice within the time specified is jurisdictional and not subject to qualification because of hardship. People v. Dawson, 98 Cal.App.2d 517, 220 P.2d 587; People v. Lewis, 219 Cal. 410, 27 P.2d 73.

Appellant recognizes that the notice of appeal was filed too late, but contends that such late filing should be excused for the following reasons: On May 10, 1954, appellant placed in the hands of the mail clerk at San Quentin an affidavit directed to the District Court of Appeal, First Appellate District. It is there averred that 'on Monday, April 12th, 1954, as a prisoner in the Alameda County Jail, he prepared a Notice of Appeal, and deposited it at the designated place prescribed for picking-up mail.' It is then averred that he assumes 'that the Court had neglected, or overlooked, or did not receive the Notice of Appeal' and for those reasons 'he is asking the Court to notify him of any action taken, as the result of his Notice of April 12th, 1954. If no action was taken, he requests the Court to grant him relief from the loss of ten (10) days appeal.' A copy of this affidavit was mailed to the Alameda County Clerk.

[130 Cal.App.2d 604] The original affidavit was not received by the clerk of this court, but the copy was received by the trial court...

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6 cases
  • People v. Dailey
    • United States
    • California Court of Appeals
    • November 5, 1959 was within time 'within the sphere of the philosophy--both legal and moral--enunciated in the' Slobodion case. People v. Martiz, 1955, 130 Cal.App.2d 602, 279 P.2d 568, is not opposed to our ruling. There the prisoner, whose notice of appeal did not reach the county clerk's office until......
  • Gonsalves, Application of, Cr. 5986
    • United States
    • United States State Supreme Court (California)
    • May 31, 1957
    ...P.2d 287), People v. Riser ((1956), 47 Cal.2d 594, 305 P.2d 18)) that Petitioner bore the risk of filing by mail (People v. Martiz ((1955), 130 Cal.App.2d 602, 279 P.2d 568)) and that Petitioner was not lulled into a false feeling of security by The attorney general argues that habeas corpu......
  • Gomes v. Superior Court for Los Angeles County
    • United States
    • California Court of Appeals
    • May 9, 1969
    ......v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;. PEOPLE of the State of California, Real Party in Interest. Div. 34081. Court of Appeal, Second District, ... (See also People v. Martiz, 130 Cal.App.2d 602, 604, 279 P.2d 568.) 8.         Cases such as Industrial Indem. Co. v. ......
  • People v. Head, Cr. 5893
    • United States
    • United States State Supreme Court (California)
    • August 10, 1956
    ...* * *.' See, also, People v. Cato, 136 Cal.App.2d 503, 289 P.2d 119; People v. Olgin, 137 Cal.App.2d 286, 290 P.2d 77; People v. Martiz, 130 Cal.App.2d 602, 279 P.2d 568; People v. Arsen, supra, 91 Cal.App.2d 26, 204 P.2d 389, 957; People v. Stinchcomb, supra, 92 Cal.App.2d 741, 208 P.2d 39......
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