McNulty

The defendant in this case was convicted of murder in the first degree, and sentenced to suffer death. He appealed from the judgment of conviction, which was finally affirmed by this court in February last. Upon the going down of the remittitur, the superior court made an order fixing the twelfth day of August, 1892, as the time, and the county jail of San Francisco as the place, of execution of the judgment. From this order the defendant, on the eighth day of August, served and filed his notice of appeal. The people now move to dismiss the appeal, upon the ground that it is frivolous.

*595 This is not an appeal from the judgment of conviction, but only an appeal from the order last above mentioned, made and entered on June 17, 1892, and the fact that said order is designated in the notice of appeal as a judgment does not make it an appeal from the judgment of conviction which was made and entered more than three years before this last appeal was taken. An appeal from the judgment in a criminal case must be taken within one year after its rendition. (Pen. Code, sec. 1239.)

This, then, is an appeal taken under subdivision 3 of section 1237 of the Penal Code, which allows the…

I dissent. I think that the papers submitted show upon their face that they constitute a mere confessed attempt to take a second appeal from the judgment, and should be so considered. The appeal should, in my opinion, be dismissed.