People v. Russo

[637]

CHIPMAN, P. J.

Defendants were convicted of the crime of fishing for striped bass with unlawful nets. A demurrer to the information was interposed, and, we think, rightly overruled. Defendants appeal from the judgment of conviction and from the order denying their motion for a new trial.

A motion to set aside the information with an affidavit explanatory of the proceedings had on said motion, the rulings of the court thereon and exceptions thereto, and the minutes of the trial in the magistrate’s court, are printed in the transcript, but they are not authenticated in the bill of exceptions.

Appellants claim that the motion to dismiss the information is part of the judgment-roll made up by the clerk under section 1207, Penal Code. The papers which, under that section, constitute the record, or judgment-roll, are: “1. The indictment or information and a copy of the minutes of the pleas or demurrer; 2. A copy of the minutes of the trial; 3. The written instructions given, modified or refused . . . and the certified transcript of the charge of the court; and 4. A copy of the judgment.” The motion for a new trial and the minutes of the proceedings had on such a motion constitute no part of the judgment-roll.

People

v.

Sing Yow),

145 Cal. 1, [78 Pac. 235], where it was also held that “the clerk cannot make them a part thereof, and they’ should appear only in the bill of exceptions.” (See, also,

People

v.

Ruiz,

144 Cal. 251, [77 Pac. 907];

People

v.

Frank,

2 Cal. App. 283, [83 Pac. 578].) The same is true of the motion to dismiss the information and the minutes relating thereto. They should have appeared in the bill of exceptions, the only means by which they could have been properly authenticated.