THE COURT.
The defendants were convicted on January 27, 1929, in the superior court in and for the county of Los Angeles of the crime of obtaining money under false pretenses. On February 1, 1928, they filed their notice of appeal to the District Court of Appeal, but they failed to comply, technically, with section 1247 of the Penal Code, in that they did not file with the clerk and present an application to the trial court which stated in general terms the ground of appeal and the points upon which the appellants *Page 451 rely. On January 31, 1928, the day when judgment was pronounced upon the verdict, appellants filed a written notice of appeal and also gave oral notice of appeal from the judgment and order denying their respective motions for new trials. On the following day they filed with the clerk of the court in which the proceedings were had the following notice and request, addressed to the clerk of said court:
"Please take notice that the defendants have appealed from the judgment heretofore rendered in the above-entitled action, and state that in order to properly prepare the appeal, it will be necessary for them to have a phonographic copy of the reporter's transcript, together with all the evidence taken upon the trial and of proceedings had in the case relative to testimony taken before the court at the trial of said action and, as well, the clerk's transcript as required by the Penal Code of this state, including the indictment; a copy of the minutes of the trial; a copy of other minutes of the action, including the proceedings on motion and arrest of judgment and new trial; a copy of the written charges given by the court to the jury; a copy of the instructions requested by the defendants and refused by the court, and a copy of instructions requested by defendants and modified by the court, after given; also transcript of any oral charges; a copy of the judgment and any written or printed exhibits offered in evidence at the trial of the cause, and the defendants hereby request that an order of this court be made accordingly."
After the appellants had completed their record upon appeal, a motion was made by the attorney-general to dismiss the appeal, which motion was granted by the District Court of Appeal. On petition therefor, a hearing in this court was granted and the motion to dismiss is before us for determination.
The attorneys who prepared the papers on appeal evidently relied upon the act of the legislature (Stats. 1927, p. 1048), which practically repealed section 1247 of the Penal Code, but they also evidently overlooked the fact that by virtue of section1246 of the Penal Code, also enacted in 1927, section 1247 remained in force and effect until such time as the Judicial Council had promulgated rules of procedure governing appeals in such cases, which had not been done at the time this appeal was taken. *Page 452
This mistake is one which might be made readily and indeed the number of cases in which it has been made bears evidence of the fact that the form of the legislation conditionally repealing section 1247 of the Penal Code was in the nature of a trap to the unwary.
[1] It is the policy of this court, of course, to hear appeals upon the merits and to avoid, if possible, all forfeiture of substantial rights upon technicalities.
[2] In the instant case, there was a substantial compliance with section 1247, for it is not disputed that the record on appeal is sufficient in every respect, excepting the failure on the part of appellants to comply with those particular portions of section 1247 of the Penal Code which provide that the application filed with the clerk and presented to the trial court should contain a statement in general terms of the grounds of the appeal and the points upon which appellants rely.
This provision is for the benefit of the appellate court to aid it in deciding the points raised upon appeal, and no one else is prejudiced by the omission in this case. In other words, the appellants substantially complied with section 1247 of the Penal Code, and the defect worked no injury to anyone, but resulted merely in an extra burden being placed upon the appellate court. In view of these facts and the fact that the legislation conditionally repealing section 1247 of the Penal Code is in a form which may readily mislead, we are disposed to take the view that the appeal should be heard upon its merits.
The motion to dismiss the appeal is denied.