96 P. 913 | Cal. Ct. App. | 1908
Lead Opinion
Application for writ of prohibition.
Defendant was convicted of the crime of rape. He moved the court for a new trial, and his motion was denied on the seventh day of February, 1908, and on the same day judgment was rendered and sentence imposed.
Immediately following the pronouncing of sentence, all the parties being present in open court, the defendant made application to the court for twenty days additional time in which to prepare and serve his bill of exceptions. The district attorney made a statement that it would be impossible for the record of the trial to be written up in time for defendant to prepare and serve his bill within the time allowed by law, and upon this statement of the district attorney, and without objection upon his part, the court made its order granting defendant ten days additional time to prepare his bill.
Defendant's attorney relied upon the foregoing order and also upon the assurance of the district attorney that the latter would consent to a ten days further extension of time, if necessary, and that he would not insist that the notice required by statute should be given, if defendant should make application for such extension. On February 17th, it appearing that there was some doubt about the order of February *324 7th having been entered, the counsel for both parties being in court, the question was raised and the court determined that such an order had been made, and directed the clerk to make an entry thereof in the minutes. This was not done, however, until March 16, 1908, when, by a written order of the court, the minutes were corrected to show this order so made.
On the morning of February 17, 1908, all parties being in open court, defendant's attorney being apprehensive of the effect of the failure to enter the order of February 7th, made application to the court for additional time. The district attorney objected upon the ground that no notice had been given and no affidavit of cause served on him, as required by sections 1171 and
On February 25, 1908, written notice as required by section 1171, of defendant's intention to apply on February 28, 1908, to the judge who tried the cause to settle the defendant's bill of exceptions was served upon the district attorney. At the *325 time set for such presentation, the latter appeared and objected to the settlement of the bill on the ground that the judge had no jurisdiction to settle the same, but made no counter-showing to the defendant's showing for relief. An alternative writ of prohibition issued from this court to the superior judge prohibiting the trial judge from proceeding with the settlement of the bill, and the matter now comes on for hearing on the motion of the district attorney to make the writ permanent.
The position of the district attorney on this application is that no waiver, conduct, misrepresentation or deceit of a district attorney, whether relied upon by a defendant or not, can excuse him for a failure to give the notice and serve the affidavit required by the statute, and that either or all these cannot estop a district attorney from raising this question as a jurisdictional prerequisite to the settlement of the bill.
We take it the amendment of the sections named upon the recommendation of the code commissioner in 1905, was to accomplish the purpose stated in the notes to those sections on page 1138 of the Statutes of 1905, and that it was not intended thereby to wipe out all general provisions for relief from excusable neglect, rules relating to waiver of the steps necessary to acquire jurisdiction, and to the estoppel of parties to take advantage of their own wrong. These continue to be a part of the practice applicable to criminal cases in this state.
Section
The court being in session, the counsel for the respective parties being present, and the district attorney making a statement of the facts relative to the possibility of having the record of the proceedings upon the trial transcribed in time to prepare the bill, this was a statement of fact which the court was entitled to consider as a showing of cause and equivalent to the affidavit required by section
The application of defendant on February 17th made a showing sufficient for relief and also for an extension of time. It was treated as if an application to extend the time only, and the order made thereon was limited to this in its terms. If the order of February 7th be considered as ineffectual to grant the ten days' additional time, and the application of February 17th as one for an extension of time only, the notice and service of affidavit required by section
If it be conceded that both the efforts to secure an extension of time were ineffectual, we should still be compelled to hold that the petition should be denied.
Passing the order of February 7th as unauthorized, and the order of February 25th as ineffective because not preceded by a formal order of relief under section
In our opinion the alternative writ should be dismissed and the petition denied, and it is so ordered.
Allen, P. J., concurred.
Concurrence Opinion
I concur in the judgment, but cannot assent to all that is said in the foregoing opinion by Mr. Justice Taggart.
Under the provisions of section 1171 of the Penal Code, the defendant should have presented the draft of his bill of exceptions to the judge for settlement within ten days after judgment, or within such extension of time ordered by the trial judge in accordance with the provisions of section
The expression of opinion by the trial judge wherein he gives his reasons for making the order, as shown by the return, is no part of the record, and cannot be regarded of any weight in support of this application. (Higgins v. LosAngeles Ry. Co.,
Want of jurisdiction, however, does not of itself warrant the issuance of the writ of prohibition. Petitioner can suffer no injury for the reason that he has an adequate remedy upon the hearing of the appeal, by interposing objections to the consideration of the bill of exceptions, upon the ground that the bill itself discloses that it was settled after the expiration of the statutory time, and in the absence of an order granting relief, without which there could be no authority for making the order dated February 25th extending the time. (Lindley v. Superior Court,
It is not improper to suggest that ample time remains for defendant, if so advised, to make an application supported by a showing of facts which may warrant the trial judge in making an order relieving him from default, thus affording a record of the proceedings under the authority of which he would, in the first instance, be warranted in settling the bill.