may be taken from the judgment in open court at the time it is rendered and from an order made after judgment, but does not mention the order denying motion for new trial, and, of course, does not provide at what time such appeal is to be taken.

This brings us to the principal point urged by respondents, to wit, that no appeal lies from an order denying motion for a new trial until after judgment of conviction is entered.

The right of appeal has been said by the supreme court to be guaranteed by the constitution and to be as sacred as the right to trial by jury, and is one of the means provided by law to determine the guilt or innocence of the accused. (Ex parte Hoge, 48 Cal. 3, 6; In re Adams, 81 Cal. 163, 167, [22 Pac. 547].) Under sections 1201 and 1202 the motion for a new trial must be made before judgment is pronounced. Under subdivision 1, section 1203, the court may suspend sentence, and in cases arising under sections 270 and 270a (under which petitioner was convicted) the suspension may continue for five years. The bond given by petitioner for the support of his minor child was under section 270b, and by that section the court was also authorized to suspend sentence, but this bond, in our opinion, is not a waiver of petitioner's right to appeal from the order denying his motion for a new trial. In State v. Coolidge, 72 Wash. 42, [129 Pac. 1088], a bond was given by the defendant after conviction in a case such as we have here, and it was there claimed that the bond operated as a waiver of defendant's right to appeal. Said the court: "It may be that a case might arise where the giving of a bond, conditioned for the performance of a judgment, would operate as a waiver of the right to appeal; but it cannot be so held in this case. The verdict still stands, and defendant is entitled to urge such legal defense as he may have. thereto." In the case cited no judgment had been entered, but the court made an order, as here, staying proceedings. A motion for a new trial had previously been made and denied.

It has been held that the giving notice of appeal to the clerk under the new system gives the appellate court jurisdiction in civil cases. (Hibernia Sav. & Loan Soc. v. Doran, 161 Cal. 118, 120, [118 Pac. 526]; Clemens v. Gregg, 34 Cal. App. 272, [167 Pac. 299].) We see no reason why this should not be true of appeals in criminal cases. Section 1247 of

the Penal Code provides that upon an appeal from an order of the superior court to the district court of appeal in any criminal action where appeal is allowed by law, the defendant must within a given time make application to the trial court, stating the grounds of the appeal and designate the portions of the stenographic reporter's notes upon which defendant relies. It is made the duty of the court, upon such application, to order the transcription made and also the duty of the reporter to file with the clerk such transcription. Everything which this section requires of the defendant was done in this case. Section 1247a makes it the duty of the clerk to deliver copies of the transcription to the parties named, including a copy to the court for its approval, and if no objection is made to the transcription, it is made the duty of the court to approve it and deliver it to the clerk. Provision is made for hearing objections and for approval by the court thereafter. When finally approved and received by the clerk from the judge, the clerk "must immediately transmit the same to the court to which the appeal was taken, and thereupon it shall become a part of the record upon appeal." Section 1246 provides that "upon the appeal being taken, the clerk of the court from which the appeal is taken must," without charge, within twenty days thereafter, transmit to the clerk of the appellate court a typewritten copy of the following papers: The enumerated papers include "the proceedings on motion for arrest of judgment or new trial.”

The machinery seems to be amply provided for perfecting the appeal from the order in question, and is the same for perfecting the appeal from the judgment or any order made after judgment, without regard to the fact that no mention of such order is made in section 1239. It was held in People v. Thompson, 115 Cal. 160, [46 Pac. 912], that although there was no question raised on an appeal from the judgment as to the instructions, and they were not in fact presented or passed upon, the instructions, nevertheless, may be reviewed upon an appeal from the order, notwithstanding that they might also have been reviewed on an appeal from the judgment if presented on such appeal. Still, as was there held, the Penal Code provides for an appeal from an order denying a new trial (section 1237), and as the motion for a new trial is an independent proceeding, it may happen, as in civil cases, that a judgment is set aside on a motion for a new

trial after it had been affirmed on appeal from the judgment, and such was the result in the case cited.

In the case of People v. Irish, 34 Cal. App. 424, [167 Pac. 900], a case such as this one, sentence was suspended and an appeal taken and heard and judgment affirmed. The opinion does not state from what the appeal was taken, but an examination of the record shows that it was from the order denying a new trial while the sentence remained suspended.

The contention of respondents leads to this-that the defendant may rest under suspended sentence for a period of five years before he can have his motion for a new trial heard. He may not have been guilty of the offense charged or he may not have been legally convicted, but the law furnishes no remedy under which he can have these questions answered by an appellate court pending suspension of sentence.

We think petitioner is entitled to have his appeal heard pending suspension of sentence, and it is therefore ordered that he have the writ prayed for.

Hart, J., and Burnett, J., concurred.

On application for a rehearing the court, on March 6, 1918, rendered the following supplemental opinion:

CHIPMAN, P. J.-Petitioner was granted a writ of mandamus compelling respondent Duffy to transcribe her notes of all the proceedings taken at the trial of petitioner, when as defendant in a criminal action he was convicted of failing to support his minor child, and also compelling respondent McCallum to transcribe his notes of the proceedings of the court on the motion of petitioner, defendant in the action, in arrest of judgment and for a new trial, it appearing that in said action respondent Duffy was acting as the official reporter at the trial and respondent McCallum was acting as official reporter at the hearing of said motion; and it further appearing that said transcripts were regularly demanded by the defendant in aid of his appeal from the judgment and the order denying his motion for a new trial.

In the present matter petitioner seeks a rehearing for the purpose alone of having the judgment so amended as to allow him his costs herein. It is understood that if costs are not legally allowable, the petition should be denied; and if allow

able and allowed by the court, that the judgment be amended accordingly.

Costs are allowable by statutory authority only. They are allowed to the plaintiff, of course, in the following cases: “ . . . 4. In a special proceeding.' (Code Civ. Proc., sec. 1022.) "In other actions than those mentioned in section ten hundred and twenty-two, costs may be allowed or not, . . . in the discretion of the court. (Code Civ. Proc., sec. 1025.) In an application for mandate, "if judgment be given for the applicant, he may recover the damages which he has sustained, . . . together with costs; and for such damages and costs an execution may issue. Proc., sec. 1095.)

(Code Civ.

In the case of Platnauer v. Superior Court, 33 Cal. App. 894, [165 Pac. 41], relied on by respondents, we held that costs were not allowable for the reasons there stated at some length. The application there, however, was for a writ of review, running against the court. The prevailing party relied upon sections 1027 and 1032 of the Code of Civil Procedure, but these sections were held to be inapplicable, and it was also held that costs could be recovered neither against the judge nor the county.

The statute as to writs of review makes no mention of costs, leaving the question to be determined under the general provisions as to costs. The reasons given for the decision in the Platnauer case are not applicable here. Besides, in mandamus proceedings there is express authority given for recovering costs. The argument of respondents that "shorthand reporters are governmental agencies of the superior court, which is a governmental agency of the state," and hence should enjoy the immunity given the court in the matter of costs, does not strongly appeal to us. The court in the case cited was exercising a judicial function in a matter wherein it had jurisdiction of the person and subject matter and could decide wrongly or rightly. Here respondents had no judicial function to perform; the duty which the defendant in the criminal action (petitioner here) called upon them to perform was ministerial and its performance was made mandatory by the statute. If it be conceded (and we make no such concession) that section 1095 of the Code of Civil Procedure does not "take away, as is contended, the discretion of the court in allowing or denying costs, we should

hesitate to exercise such discretion against petitioner, for the reason that the policy and letter of the law give to the defendant in a criminal action the services of the courts and their officials free of expense at all stages of the proceedings, and in harmony with that policy he should have his costs when driven to the court to compel a court stenographer to perform a mere ministerial duty placed upon him by the statute, especially where the performance of this duty is indispensably necessary to enable the defendant in the action to perfect his appeal.

In Power v. May, 123 Cal. 147, 152, [55 Pac. 796], the supreme court held that sections 1022 and 1095 of the Code of Civil Procedure applied where the writ of mandate was against a county treasurer, and that costs of the mandamus procceding were chargeable against the defendant personally. It was held in Gould v. Moss, 158 Cal. 548, [111 Pac. 925], that section 1095 of the Code of Civil Procedure applies "to original proceedings of that character, whether begun in the superior court, in the supreme court, or in a district court of appeal. The point that this court is without power to award costs in such cases is without merit." Our conclusion is that petitioner is entitled to his costs.

It is ordered that the judgment be amended to read that the petitioner have the writ prayed for and that he have judg ment for his costs.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1918. Angellotti, C. J., dissented from the order denying a hearing in the supreme court and rendered the following opinion thereon:

ANGELLOTTI, C. J., Dissenting.-I am of the opinion that there should be a hearing of this matter in this court. Regardless of other questions involved, it seems clear to me that our law does not require the shorthand reporter to furnish a transcript of the proceedings in a criminal case for the purposes of an appeal upon the demand of the appellant and without payment of fee, where the trial judge to whom application. is made for an order requiring such a transcript expressly