People v. Everett

This is a proceeding instituted by the district attorney of Calaveras county to secure a writ of prohibition restraining the judge of the superior court of said county from settling a bill of exceptions in the above-entitled cause.

The application is based upon the ground that the said judge extended the time within which defendant might prepare and present his bill beyond the statutory period, and that "neither the defendant nor his counsel, nor any person in his behalf, either made, or presented or filed, as required by section 1174 of the Penal Code, any affidavit of any kind or character with the Judge of the said Superior Court or with the District Attorney, or with any person for said Judge, showing any necessity or reason for any extension of time within which to prepare and present said bill of exceptions, and that neither the defendant nor his counsel, nor any person on his behalf notified or served upon the District Attorney any notice of any kind or character at any time prior or subsequent to the securing of the order extending the time in which to prepare and present said bill of exceptions."

There were three separate orders made, the first extending the time for thirty, the second for ten additional, and the third for four more days, and the bill was actually presented twenty-three days after the statutory period had expired. *Page 432 Section 1174 of the Penal Code provides: "The time specified in this section and section eleven hundred and seventy-one, within which the draft of a bill of exceptions must be presented to the judge or delivered to the clerk, may be extended for a reasonable period by the trial judge, or in his absence from the county or inability to act, by a justice of the Supreme Court, but only for good cause and upon affidavit showing the necessity therefor, presented upon written notice of at least two days to the adverse party who shall have the right to file counter-affidavits."

The contention of respondent is that there was a substantial compliance with the requirement of the statute, in that the district attorney was present in court and consented to the continuance, and that good cause was shown to the court, although not by affidavit, why the order should be made. It is asserted that the requirement that the district attorney be given two days' notice is for the protection of this official, and that the affidavit is for the benefit of the court, and that an opportunity to make a timely objection, if no advantage is taken of it, constitutes a waiver of these requirements.

It was held, however, by this court, in People v. Blis,3 Cal.App. 162, [84 P. 676], and People v. Simmons, 7 Cal.App. 559, [95 P. 48], that these requirements are jurisdictional. If so, they cannot be waived, and it is well settled that jurisdiction cannot be conferred by consent.