McDermott

This is a motion to recall the remit titur and reinstate the appeal in a cause wherein the judgment was affirmed without examination of the record by reason of the failure of counsel for appellant to file a brief or to appear at the time set for the hearing. The facts of the case are as follows: February 18, 1892, defendant was convicted in the superior court of Ventura County of murder in the second degree; on February 23d he appealed; March 30th he filed the printed transcript of the record at Los Angeles, — five days before the commencement of the April term at Los Angeles and thirty-three days before the commencement of the May term at Sacramento. The cause was not placed upon either the Los Angeles or the Sacramento calen *248 dar, but was placed upon the calendar for the July term at San Francisco, and set down for hearing on July 27th. On that day, there being no brief on file, and no appearance of counsel for appellant, the judgment and order appealed from were, on motion of the attorney-general, affirmed. (Pen. Code, sec. 1253.) After the expiration of thirty days, a remittitur was issued, and was, we presume, filed with the clerk of the superior court of Ventura County,…