19350102 - People v. O'Rourke

People v. O'Rourke (1935) 3 Cal.App.2d 476

[Crim. No. 2613.

 

Second Appellate District, Division One.

 

January 2, 1935.]

 

THE PEOPLE, Respondent, v. THOMAS F. O'ROURKE, Appellant.

 

COUNSEL

 

Lawrence W. Allen for Appellant.

 

U.S. Webb, Attorney-General, and John O. Palstine, Deputy Attorney-General, for Respondent.

 

OPINION

 

Conrey, P. J.

 

On trial before the court without a jury, the defendant was convicted of the crime of violation of section 112 of the California Vehicle Act, in that he was guilty of driving an automobile upon a public highway while under the influence of intoxicating liquor. [1] The written notice of appeal states an appeal from the judgment, and from an order denying defendant's motion for a new trial. But as this notice was given after the time had expired within which notice of appeal from the order could be given, it follows that the appeal before us is only an appeal from the judgment. There was not any notice of appeal given at the time when the order was made. {Page 3 Cal.App.2d 477}

 

[2] Although stated in several ways in appellant's brief, the real and only ground of appeal presented in his behalf is based upon his contention that the evidence identifying defendant as the person who was driving the car is insufficient to prove that he was the driver. His own contention at the trial was that he was the man sitting beside the driver.

 

The brief for appellant does not in any instance give reference to the places in the transcript where the court might find any of the parts of the evidence to which the brief refers. We are given merely counsel's version of the evidence, without any of the required means of verification. But even on counsel's own statement of the case there appears to be evidence sufficient to sustain the conviction.

 

The judgment is affirmed.

 

Houser, J., and York, J., concurred.