77 Cal. 353 | Cal. | 1888
This is an application for a writ of mandate commanding the Honorable B. F. Myres, judge of the superior court of the county of Placer, to settle a bill of exceptions in the case of People v. Sansome. San-some, the petitioner for the writ here, was indicted by the grand jury of Placer County for the crime of robbery, and tried on this indictment before the superior court of the same county, the Honorable B. F. Myres, presiding. He was convicted and sentenced, and at the proper time a motion for a new trial was made. This motion was made on the grounds that the court had misdirected the jury in matters of law, and erred in the decision of matters of law arising during the course of the trial, and that the verdict was contrary to the evidence. In due time counsel for the defendant, Sansome, prepared a draught of a bill of exceptions, which was regularly presented, on notice to the district attorney, to the judge for settlement. The judge refused to settle the bill presented, on the ground that it was inaccurate, and in many respects untrue, and contained but a meager and partial statement of the facts and proceedings leading up to and connected with and upon which the rulings of the court were had, that are complained of, and also a mere defective skeleton of the testimony and evidence submitted to the jury, and upon which they reached their verdict of guilty. To the alternative writ issued in this case, the judge has filed an answer, in which he states the same reasons for not settling the bill of exceptions, and amplifies them. The judge in his answer says: “That to have presented fully and fairly all the matters and things and facts connected with and leading up to the rulings of the court and connected with the trial, as tending to show error, it would have been.
As we understand the position of this cause, it was argued upon a general demurrer to the answer. The statements of the answer must then be taken as true. That it is the duty of the party desiring to have a bill of exceptions settled to prepare the draught of such bill, is plainly required by the statute. (See Pen. Code, sec. 1171. See also section 1174 of the same code.) This duty of preparing such a draught cannot, by direct or indirect means, be thrown on the court or judge. The draught to be prepared by the party should be full and fair. It should show fully and fairly all the facts and circumstances on which the rulings of the court, excepted to, were based; and when the ruling of the court, on a motion for a new trial, made on the ground that the verdict is contrary to the evidence, is to be reviewed, all the evidence on which the jury acted should be set out in the draught of the bill. The mistakes and omissions of the draught may be corrected and supplied by the suggestion and order of the judge on the settlement of the bill, so as to make the bill, when settled, conform to the truth, and correctly set forth, so far as is material, what transpired on the trial or proceeding to be reviewed. The judge should see that the bill is a true history of what it purports to set forth. But this duty of the judge does not extend so far as to require him to prepare or have
Searls, C. J., McFarland, J., Paterson, J., Works, J., and Sharpstein, J., concurred.