Schmitz

Defendant was tried and convicted of the crime of extortion. After the verdict of the jury, on July 8, 1907, he made a motion for a new trial, which was denied, and thereupon the court pronounced judgment, sentencing him to the state prison for the term of five years. Thereafter, on the same day, the defendant served upon the district attorney a notice of appeal from the judgment and from the order denying the motion for a new trial, and then immediately filed the same with the clerk.

1. The district attorney moves to dismiss the appeal in this court upon two grounds: First, that the notice was served before it was filed; and second, that the appeal was premature because taken before the judgment was entered.

The provisions of the Penal Code applicable to the motion are as follows.

As to the first ground, the statute provides for filing and serving the notice, and there does not appear to be anything in the statute, and there certainly is no reason for holding that where the filing and serving are contemporaneous, the order in which they are done is material. It is necessary under the statute that the notice be filed and served,, and if on the same day and about the same minute…