84 P. 676 | Cal. Ct. App. | 1906
It appears that defendant was, on the fourth day of August, 1905, duly convicted of the crime of obtaining money by false pretenses. Thereafter, on August 7, 1905, his motion for a new trial was denied, and judgment of conviction was thereupon rendered. On August 8th he served upon the district attorney, and filed in said superior court, notice of appeal. Thereafter, on August 16th, the judge of said court made an order extending the time in which defendant might prepare and present his bill of exceptions, to and including August 26, 1905. On August 28, 1905, the said judge made and entered an order further extending the time to and including September 6, 1905. It appears, also, that neither the defendant nor his attorney served any notice on the district attorney of defendant's intention to present a bill of exceptions for settlement, nor made, presented, or filed any affidavit of any kind whatever with the judge of said court or with the district attorney showing any necessity or reason for any extension of time within which to present or file said bill of exceptions, nor was any notice given to the district attorney by the defendant or by his attorney of any intention to apply for an order extending the time within which to present and file a bill of exceptions, nor was the district attorney given any opportunity to oppose, by affidavit or otherwise, such extension of time as granted by the said court. On September 6, 1905, the defendant in the action presented and filed his proposed bill of exceptions with the clerk, but at no time prior thereto had the district attorney notice of such intended presentation or filing with the clerk of said bill of exceptions. Subsequently, to wit, on September 22, 1905, the said bill of exceptions was presented to the judge of said court and was placed upon the calendar, and, thereafter, the settlement thereof was postponed from time to time until October 23, 1905, on which day the district *164 attorney filed his affidavit objecting to the settlement of said proposed bill of exceptions, in which were set forth the facts above appearing. On November 15, 1905, the said court made an order overruling the objections made to the settlement and ordered "that the settlement of said bill of exceptions be placed on the calendar for hearing for Monday, November 20, 1905." Whereupon this proceeding was brought to prohibit the court from settling the said bill, it being alleged that the court will settle the same unless prohibited from so doing by this court.
The defendant made no counter-showing, by affidavit or otherwise, either at the hearing of the objections of the district attorney on November 15th or at the hearing of this petition; and at no time during any of said proceedings did defendant make or offer any excuse for his failure to present his bill of exceptions for settlement as required by the statute. Prior to the filing of the information against the defendant, sections 1171 and
It was held in an early case, People v. Woppner,
The statute now is much more explicit than when these cases were decided, and introduces some additional and material requirements. It now provides that the time can be extended "only for good cause and upon affidavit showing the necessity therefor, presented upon written notice of at least two days to the adverse party, who shall have the right to file counter-affidavits." The code commissioner, in his note, says: "The design of the amendment to these sections is to bring about, as far as possible, an avoidance of the delay now *166
so common in getting criminal cases to a hearing in the supreme court, and to require bills of exceptions in criminal cases to be settled as expeditiously as is compatible with the circumstances of the case." Even under the former statute, and in the cases first announcing the rule in criminal cases (People v. Woppner,
It was objected, to the first extension of time given by the court — first, that the time in which the bill must be presented to the judge can be extended only for good cause and upon affidavit showing the necessity therefor; and, second, that there must be written notice of at least two days given to the adverse party when an extension of time is sought, and in no case can the time be extended by stipulation. To the second extension the same objections are made as to the first extension above mentioned, and further, that the time given in the first extension had expired and the court lost jurisdiction to make any further order extending the time. The case of Brown v. Prewett, supra, seems to hold that under the former statute jurisdiction is not lost to settle a bill or to extend the time within which to settle it, although the statutory period has expired before the bill is presented or an extension *167 of time has been asked. The question was there treated as one of discretion, and its abuse or nonabuse, rather than one of power. The present statute introduces additional requirements which we cannot hold to be merely directory. The judge may extend the time "for a reasonable period," but the statute expressly provides that he may do this "only for good cause and upon affidavit showing the necessity therefor," on notice to the district attorney, "who shall have the right to file counter-affidavits." And the right of the parties to stipulate for further time is expressly taken away. If the judge can, in the ex parte manner here shown, grant extensions of time without requiring the defendant to conform in any particular to the provisions of the statute, we might as well have no statute; the whole subject would be at large and the procedure absolutely nullified. The statute is a reasonable one and imposes no hardships and its constitutionality is not questioned. In holding that the time within which the bill must be presented was directory, the court heretofore gave, for the benefit of the defendant in a criminal case, a different interpretation to the then statute from that given to like provisions in the Code of Civil Procedure. But we do not think the reasons expressed for the departure in that particular in the early cases mentioned can be so applied as to justify the utter disregard of all the present existing legislative directions. To do so would be equivalent to the court's substituting its own procedure for that prescribed by statute. This would be far beyond the rightful exercise of power by the court whose function it is to interpret and enforce the law, not to enact it or annul it.
We think it was clearly the duty of the court to have refused to settle the bill or fix a definite time when it would do so. Had the court refused, it is certain the defendant could not, under the facts shown, have compelled it by mandamus. To have obtained the benefit of such writ he would have been required to show compliance with the statute or have shown good cause for not having done so, thus having brought the case within the jurisdiction of the court to exercise the power given it by the statute. We can conceive of no circumstances under which the defendant would not at least be able to show why he should be excused for failure to comply with the statute. If he fails to do this much, he fails *168
to give the court jurisdiction to extend his time. It was admitted by defendant's counsel at the argument that the procedure laid down in the statute "is absolutely necessary to be taken by defendant to give him an absolute right to have the bill settled." But it is claimed that it was nevertheless within the discretion of the court, "after hearing the whole matter, to make the order setting down the bill for settlement and giving the district attorney time in which to file his amendments to the bill"; that the people had the right of appeal under subdivision
Let the peremptory writ of prohibition issue.
Buckles, J., and McLaughlin, J., concurred.