State v. Baker

8 Nev. 141 | Nev. | 1872

By the Court,

Lewis, C. J.:

The errors relied on by the defendants in this case can not be considered by this court for the reason that there is no record which can be looked into properly bringing them up.

The statute, section 423 of the Criminal Practice Act, makes it necessary that bills of exceptions be settled and signed by the judge and filed with the clerk of the court within ten days after the trial of the case, unless further time be granted by the judge who presided at the trial, or one of the judges of the supreme court. This section, it is true, has been held to be directory, and correctly so; but if not so settled and signed within the time some reasonable excuse should be given for the delay. So it is held under a similar statute. People v. Lee, 14 Cal. 370. "Where there is a'good reason or excuse for the delay or failure in preparing and presenting the bill for settlement, the showing should be made to the court below, and the judge should be liberal in securing to the accused in such case all the advantages which the law awards to him. In this case the court below denied the application to settle the bill after the expiration of the proper, time, giving as a reason therefor that no sufficient cause had been shown or excuse given for the delay. What the excuse was we are not permitted to determine, for the affidavit made in support of the motion is not so brought to this court as to enable us to look into it. An affidavit, it is' true, appears among the^ papers brought up, but there is nothing in the record to identify it as being the one upon which the motion was Blade, or showing that it was ever used for that purpose. -It comes to this court as a detached paper. It is not embodied in or made a part of what is claimed to be the bill of exceptions^ or in a statement of any kind. We know of no way by which an affidavit made in a criminal case can be brought to the attention of this court from the court of nisiprius, except by embodying it in a bill of exceptions or a statement properly certified. 'How is this court to know that the affidavit in question was the one presented to the court below, or that the motion to settle the bill of exceptions was made upon it ? We have no evidence of that fact of the character required by the statute. Hence, as the court below refused to settle the bill upon the ground that no sufficient excuse was offered for the delay, and we can not look into the affidavit presenting it to determine whether it was sufficient or not, there is no alternative but to affirm the action of the court below.

But it is argued, the minutes show the error complained of, and as they are made a part of the record they should be reviewed by this court without a bill of exceptions. The minutes, as a matter of fact, do not show the error unless it can be presumed by this court that the clerk made minutes of that which the statute does not require to be so noted. It is undoubtedly true that if the law required the clerk to make minutes of the peremptory challenges and of the proceedings had thereon, it would be a presumption which should control this court that he had fully performed his duty; and therefore if his minutes showed the exercise of only five peremptory challenges by the defendants, and the refusal of the court to allow more when as was the case here they were entitled to ten, the error would ’be sufciently shown. But the statute does not require the clerk to make any minutes of the peremptory challenges; on the contrary, as he is expressly required to enter other challenges together with the proceedings had thereon upon the minutes* (Sections 181, 182, 325, 328, 342) the inference is that no minute is required to be made of the peremptory challenges, upon the rule that the expression of one thing excludes all others. Now, if these minutes expressly stated that only five peremptory challenges were exercised by the defendants and that the court refused to allow any more, this would not be a sufficient showing of error to authorize this court to consider it, because the minutes so made would be entirely gratuitous on the part of the clerk, unauthorized by statute, and therefore could not be considered as a part of the record to be reviewed by this court without bill of exceptions.

Minutes of challenges not directed by statute to be made are no more a part of the record to be brought to this court than a minute of any other fact or proceeding in court not required to be entered on the minutes. But these minutes show only by inference that the court denied the defendants the right of ten peremptory challenges — that is, they show that they exercised five, but they do not expressly state that no more- were allowed.

The judgment must be affirmed.