Brecker

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 207 The judgment and the order from which these appeals were taken in this cause were affirmed in an opinion filed in this court on September 17, 1912. ( Post, p. 219, [ 127 P. 666 ].) The ground upon which the affirmance was based was that there was not a legally authenticated record of the evidence brought up to this court. (Pen. Code, sec. 1247.) *Page 208 The defendant, in due time, petitioned for a rehearing and, with the petition, submitted an amended certificate by the stenographic reporter who took the phonographic report of the testimony and other proceedings of the trial and asked that the case be reopened and that such amended certificate be substituted for the defective one attached to the transcript of the testimony. Said certificate, as so amended, being legally sufficient in all respects and the attorney-general being of the opinion that there is no legal objection to the allowance of the same, whereby the stenographic transcription will stand as having been properly authenticated, and as a review of an appeal upon the merits is…

The defendant was convicted of the crime of obtaining from one Bert Romeroni and one James Vernon, on or about the second day of January, 1911, the sum of one hundred and fifty dollars by false and fraudulent pretenses. He appeals both from the judgment and the order denying a new trial. *Page 220 The attack upon the judgment and the order is based upon the asserted insufficiency of the evidence to justify the verdict of conviction, and certain rulings of the court admitting and rejecting certain evidence. The attorney-general has submitted a motion to dismiss the appeal upon the ground that the appellant failed to file, within five days after taking the appeal from the judgment and the order, with the clerk of the court in which the action was tried and present to said court "an application . . . stating in general terms the grounds of the appeal, and the points upon which the appellant relies, and designate what portion of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon." (Pen. Code. sec. 1247.) The resistance to the foregoing motion is based upon an affidavit of the trial judge, filed in this court, setting…