Dresser

This case was upon the calendar for argument on May 8th last, and the only brief on file at that time being the opening brief of appellant, an order was made allowing respondent fifteen days to file its brief and appellant fifteen days to reply.

The attorney general subsequently filed, on behalf of respondent, a brief in which he asks that the appeal be dismissed and the judgment affirmed, because the record fails to show that an appeal has ever been taken by defendant to this court.

The statute allows a defendant to appeal from a final judgment of conviction, from an order denying a motion for a new trial, and from an order made after judgment, affecting the substantial rights of the defendant. (Penal Code, sec. 1237.) The appeal from the judgment and from an order made after judgment must be taken by oral announcement in open court made at the time of the rendition of the judgment or making of the order respectively. (Penal Code, sec. 1239.)

The fact of such announcement “must be by the clerk immediately entered in the minutes of the court. But the failure of the clerk to so enter the same in the minutes shall in no way affect or invalidate the appeal.” (Penal Code, sec.…