68 P. 105 | Cal. | 1902
Lead Opinion
Mandamus to compel the settlement of a bill of exceptions.
From the return to our alternative writ, and the facts stated and agreed to at the hearing, the case may be stated as follows: On the 2d of December, 1899, a judgment was pronounced against the petitioner, convicting him of felony embezzlement and sentencing him to the state prison at Folsom. From that judgment he appealed to this court, and the transcript of the record filed here contained a copy of a judgment in due form, which was by this court affirmed. Upon the going down of the remittitur to the superior court, it was there discovered for the first time that no proper entry of the judgment had ever been made. It was one of those rubber-stamp entries of which we have had previous experience, where the stamp failed to make a distinct impression and the blanks were not filled out, the result being that there was no intelligible judgment of record. The trial judge, upon making this discovery, on November 19, 1901, made an order directing the entry of a judgment nunc pro tunc, as of the second day of December, 1899, the order containing recitals that the judgment was duly rendered at that date, but that the clerk had failed to enter it fully and correctly. From this order directing the entry of a nunc pro tunc judgment the petitioner at once appealed, and within ten days, upon proper notice to the district attorney, presented to the trial judge his draft of a bill of exceptions to the making of the order and requested its settlement. This demand was refused by the trial judge, and the present proceeding was instituted to compel him to settle a proper bill.
Two reasons are assigned by the respondent for his refusal to settle the bill of exceptions: 1. That it was not presented within due time after judgment was rendered, as required by section 1171 of the Penal Code; and 2. That the order of November 19th was not an order after final judgment affecting a substantial right of the petitioner.
If the second of these reasons is unfounded, the first has no application to the case. The present appeal is not from the judgment, but is an appeal from an order after judgment, from which, if it affects any substantial right of the petitioner, he has an undoubted right to appeal. (Pen. Code, sec. 1237, subd. 3.) That the order does affect the substantial rights of the *21 petitioner is clear; for while under the order he can be committed to Folsom and there imprisoned, without the order he cannot be imprisoned. The only commitment to the state prison — the only authority to the warden for the detention of a convict — is a certified copy of the judgment (Pen. Code, sec. 1216), and there can be no copy of a judgment which has no existence of record, but remains solely in the breast of the judge. This order, therefore, for the entry of a judgment nunc pro tunc was essential to the imprisonment of the petitioner, and he has a right to appeal to this court upon the question whether it was authorized by the showing made at the time of its entry. To that end a bill of exceptions setting forth the grounds of the proceeding is essential. The statute in plain terms gives the right to the bill of exceptions (Pen. Code, sec. 1172, subd. 5), and the proper practice was pursued in seeking its settlement. (Pen. Code, sec. 1174.)
The case of People v. Lenon,
There is some criticism of the course pursued by the petitioner in first appealing from the judgment, presenting a transcript here, containing a copy of a judgment purporting to have been duly entered, and after affirmance claiming that no judgment was ever entered. This is not very material, but the criticism appears to be misdirected.
The petitioner was required to appeal from the judgment within one year from its rendition (Pen. Code, sec. 1239), and to obtain a stay of proceedings he must appeal promptly, without waiting for the entry of the judgment. In the making *22 up and filing of the transcript he had no part. All that was done by the clerk without his intervention, and when it was filed here he was as well justified as the attorney-general in supposing that it was a correct copy of the record.
It is ordered that a peremptory writ of mandate issue, commanding the respondent to settle a bill of exceptions to the order of November 19, 1901.
Temple, J., and Van Dyke, J., concurred.
Concurrence Opinion
The superior court, by its order of November 19, 1901, purported to correct the minutes of its action on December 2, 1899, in rendering judgment against the petitioner herein, so that the same might correctly set forth the judgment then pronounced and rendered. The order sets forth a judgment which it declares is "the true and correct judgment as the same was in fact made, given, and rendered by the court on the second day of December, 1899," and orders "that this order be entered nunc protunc as of Saturday, December 2, 1899."
The power of a court of record to cause its acts and proceedings to be correctly set forth in its records, and for that purpose to cause its records to be corrected in accordance with the facts, is undoubted. (Kaufman v. Shain,
The order does not upon its face purport to render a new judgment, or to change the judgment theretofore rendered, and the judgment which is set forth therein as the actual *23
judgment rendered by the court on December 2, 1899, is identical in terms with the judgment which is set forth in the transcript on appeal from that judgment, and which was affirmed in this court October 11, 1901. (People v. Ward,
McFarland, J., concurred in the foregoing opinion.