People v. McShane, No. 19789

CourtUnited States Superior Court (California)
Writing for the CourtBISHOP; SHAW, P. J., and STEVENS
Citation126 Cal.App.2d Supp. 845,272 P.2d 571
Parties126 Cal.App.2d Supp. 845 PEOPLE v. McSHANE. C.R.A. 3127. Appellate Department, Superior Court, Los Angeles County, California
Decision Date17 March 1954
Docket NumberNo. 19789

Page 571

272 P.2d 571
126 Cal.App.2d Supp. 845
PEOPLE

v.
McSHANE.
C.R.A. 3127.
No. 19789.
Appellate Department, Superior Court, Los Angeles County, California.
March 17, 1954.

[126 Cal.App.2d Supp. 846] Lowell Lyons, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Donald M. Redwine, Asst. City Atty., Philip E. Grey, Deputy City Atty., Los Angeles, for respondent.

BISHOP, Judge.

The only notice of appeal in this case states that it is taken 'from the judgment entered in above entitled matter on January 13, 1954.' The action taken by the trial court on that date was to find the defendant guilty and summarily grant probation. Among other terms of the probation, the trial court imposed a fine of $500 and required that the defendant serve the first 10 days of his three-year probationary period in jail. In a very similar situation the court observed in People v. Hartshorn, 1943, 59 Cal.App.2d 285, 286, 138 P.2d 782, 783: 'As no sentence was imposed upon the verdict there is no judgment to appeal from * * *.' Plainly, this is so. People v. Guerrero, 1943, 22 Cal.2d 183, 184, 137 P.2d 21, 22; People

Page 572

v. Jones, 1950, 36 Cal.2d 373, 375, 224 P.2d 353, 354.

In spite of the fact that in each of the cases just cited the appeal from the nonexistent judgment was dismissed, we have concluded that that should not be our action in this case, but that we should proceed as though the appeal were from the order granting probation. (The problem is before us on an order to show cause why the appeal should not be dismissed.) We may follow the course indicated, without being disrespectful to the courts whose opinions we have cited, because of a change in the statutory law that became effective in 1951. At the time the cited cases were decided, no appeal was authorized from an order granting probation, with the consequence that no appeal would lie from such an order either as the judgment it was not or as the order it was. Sections 1237 and 1466 of the Penal Code were amended in 1951 so that now appeals may be taken from orders granting probation. If, then, our notice of appeal may properly be interpreted as referring to the order granting probation, although it uses the term 'judgment,' we have an appeal.

[126 Cal.App.2d Supp. 847] We have concluded that the notice may and should be construed as an appeal from the order. As stated in Adams v. Talbott, 1942, 20 Cal.2d 415, 417, 126 P.2d 347, 349: 'The fact that the plaintiff's notice of appeal...

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10 practice notes
  • People v. Glaser, Cr. 4883
    • United States
    • California Court of Appeals
    • December 20, 1965
    ...appeal therefrom. People v. Guerrero, 22 Cal.2d 183, 184, 137 P.2d 21; [238 Cal.App.2d 824] People v. McShane, 126 Cal.App.2d Supp. 845, 272 P.2d 571. However, the merits of this appeal may be decided on the appeal from the order denying a new trial.' (128 Cal.App.2d at p. 198, 275 P.2d at ......
  • Hohn, Application of
    • United States
    • California Court of Appeals
    • August 21, 1964
    ...358 P.2d 289; Larrus v. First National Bank, 122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, 368, 334 P.2d 299; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256, the notice of ap......
  • People v. Wilkins, Cr. 6478
    • United States
    • California Court of Appeals
    • March 23, 1959
    ...purports to be taken from the judgment may be treated as an appeal from the probation order. People v. McShane, 126 Cal.App.2d Supp. 845, 272 P.2d 571; People v. Camargo, 130 Cal.App.2d 543, 545, 279 P.2d In People v. Carpenter, 141 Cal.App.2d 884, 885, 297 P.2d 498, and in People v. Cummin......
  • People v. Carter, Cr. 1689
    • United States
    • California Court of Appeals
    • March 26, 1965
    ...454; People v. Melton (1954), 125 Cal.App.2d Supp. 901, 271 P.2d 962, 46 A.L.R.2d 914; People v. McShane (1954), 126 Cal.App.2d Supp. 845, 272 P.2d 571.) The appeal is not from a 'judgment of conviction,' but from the order granting probation. (People v. Sharer, 61 Cal.2d 869, 40 Cal.Rptr. ......
  • Request a trial to view additional results
10 cases
  • People v. Glaser, Cr. 4883
    • United States
    • California Court of Appeals
    • December 20, 1965
    ...appeal therefrom. People v. Guerrero, 22 Cal.2d 183, 184, 137 P.2d 21; [238 Cal.App.2d 824] People v. McShane, 126 Cal.App.2d Supp. 845, 272 P.2d 571. However, the merits of this appeal may be decided on the appeal from the order denying a new trial.' (128 Cal.App.2d at p. 198, 275 P.2d at ......
  • Hohn, Application of
    • United States
    • California Court of Appeals
    • August 21, 1964
    ...358 P.2d 289; Larrus v. First National Bank, 122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, 368, 334 P.2d 299; Nelson v. Angel, 94 Cal.App.2d 136, 139, 210 P.2d 256, the notice of ap......
  • People v. Wilkins, Cr. 6478
    • United States
    • California Court of Appeals
    • March 23, 1959
    ...purports to be taken from the judgment may be treated as an appeal from the probation order. People v. McShane, 126 Cal.App.2d Supp. 845, 272 P.2d 571; People v. Camargo, 130 Cal.App.2d 543, 545, 279 P.2d In People v. Carpenter, 141 Cal.App.2d 884, 885, 297 P.2d 498, and in People v. Cummin......
  • People v. Carter, Cr. 1689
    • United States
    • California Court of Appeals
    • March 26, 1965
    ...454; People v. Melton (1954), 125 Cal.App.2d Supp. 901, 271 P.2d 962, 46 A.L.R.2d 914; People v. McShane (1954), 126 Cal.App.2d Supp. 845, 272 P.2d 571.) The appeal is not from a 'judgment of conviction,' but from the order granting probation. (People v. Sharer, 61 Cal.2d 869, 40 Cal.Rptr. ......
  • Request a trial to view additional results

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