People v. Behrmann , 34 Cal. 2d 459 ( 1949 )

CARTER, J.

I dissent.

The oral notice of appeal was in compliance with the rules on criminal appeals properly construed, and certainly constituted a substantial compliance with those rules.

The Rules on Appeal for criminal appeals provide that the appeal “may” be taken by filing a written notice of appeal (rule 31). The word “may” is permissive (rule 40(d).) It follows, therefore, that while a written notice is proper, it is not mandatory, leaving the way open for an oral notice of appeal which has been the practice for many years. This is made more certain when we remember that in civil appeals, the appeal “is” taken by filing a written notice, thus excluding other methods (rule 1(a)), and the “notice of appeal shall be filed within 60 days” (rule 2(a)). “Shall” is mandatory (rule 40(d)). It is apparent, therefore, that when a written notice is mandatory, the rules use words of compulsion, but they chose to use merely permissive language in criminal appeals.

The foregoing becomes even more obvious when we follow the command in the rules that they be liberally construed. (Rule 31, specially required for criminal appeals, and rule 53(a) generally for all appeals.) Surely if the written notice is not mandatory, then in the light of the necessity for a liberal construction a substantial compliance will suffice. It cannot be doubted that an oral notice in open court is substantial compliance. Such notice is of record in the minutes of the court and the prosecuting attorney has full notice thereof.

I have, on other occasions, called attention to the fact that members of this court pay lip service to the necessity for liberal construction of the statutes and rules by recognizing that such necessity exists, but fail to apply this recognition when the facts demand it. The word “liberal” is defined as that which is not confined or restricted to the literal sense. (Webster’s International Diet. (2d ed.).) An interpretation of the rule relating to criminal appeals (rule 31) which gives the defendant the right to file a written notice or to give oral notice in open court (which becomes a written notice when the clerk reduces it to writing in the minutes) does not engraft on the rule something which has been omitted which the court believes should have been included therein, but is a fair interpretation within the spirit and meaning of the rule and is not inconsistent with the language used. It also resolves all reasonable doubt in favor of the applicability of the rule to the particular facts at hand in view of the previous practice in cases of this type.

I would, therefore, hold the notice of appeal sufficient and dispose of the case on its merits.