
    [Crim. No. 954.
    Third Appellate District.
    February 19, 1927.]
    THE PEOPLE, Respondent, v. ALDUS MAY, Appellant.
    
       Criminal Law.—Appeal—Application tor. Transcript — Time — Dismissal—Construction of Section 1247, Penal Code.—The provision of section 1247 of the Penal Code that if an application for a transcript of the phonographic reporter’s notes of the trial is not filed within five days after notice of appeal, “the appeal is wholly ineffectual and shall be deemed dismissed and the judgment or order may be enforced as if no appeal had been taken,” is mandatory and failure to comply therewith is fatal.
    (1) 17 C. J., p. 158, n. 4.
    APPEAL from a judgment of the Superior Court of Yuba County. H. D. Gregory, Judge Presiding.
    Appeal dismissed.
    The facts are stated in the opinion of the court.
    Frank A. Duryea for Appellant.
    U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.
    1. See 8 Cal. Jur. 523.
   FINCH, P. J.

The defendant was convicted of the crime of robbery of the second degree. He moved for a new trial, which was denied. He was thereupon sentenced to imprisonment in the state prison. He duly gave notice of appeal, but failed, within five days thereafter, or at any time, to file with the clerk or present to the court an application for a transcript of the phonographic reporter’s notes of the trial, as required by the provisions of section 1247 of the Penal Code. One of the provisions of that section reads as follows: “If such application is not filed within said time, the appeal is wholly ineffectual and shall be deemed dismissed and the judgment or order may be enforced as if no appeal had been taken.”

That provision is mandatory and failure to comply therewith is fatal. (People v. Hill, 78 Cal. App. 615 [248 Pac. 714], and cases there cited.)

It may be stated further that the facts set forth in appellant’s opening brief as constituting the defendant’s testimony given at the trial conclusively show that he is guilty of the crime of which he was convicted.

The appeal is dismissed.

Hart, J., and Plummer, J., concurred.  