People v. Soto

TAGGART, J.

Application for writ of prohibition.

Defendant was convicted of the crime of rape. He moved the court for a new trial, and his motion was denied on the seventh day of February, 1908, and on the same day judgment was rendered and sentence imposed.

Immediately following the pronouncing of sentence, all the parties being present in open court, the defendant made application to the court for twenty days additional time in which to prepare and serve his bill of exceptions. The district attorney made a statement that it would be impossible for the record of the trial to be written up in time for defendant to prepare and serve his bill within the time allowed by law, and upon this statement of the district attorney, and without objection upon his part, the court made its order granting defendant ten, days additional time to prepare his biü.

Defendant’s attorney relied upon the foregoing order and also upon the assurance of the district attorney that the latter would consent to a ten days further extension of time, if necessary, and that he would not insist that the notice required by statute should be given, if defendant should make application for such extension. On February 17th, it appearing that there was some doubt about the order of Feb

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ruary 7th having been entered, the counsel for both parties being in court, the question was raised and the court determined that such an order had been made, and directed the clerk to make an entry thereof in the minutes. This was not done, however, until March 16, 1908, when, by a written order of the court, the minutes were corrected to show this order so made.

On the morning of February 17, 1908, all parties being in open court, defendant’s attorney being apprehensive of the effect of the failure to enter the order of February 7th, made application to the court for additional time. The district attorney objected upon the ground that no notice had been given and no affidavit of cause served on him, as required by sections 1171 and 1174 of the Penal Code. The matter was continued until the afternoon of the same day for further hearing, at which time defendant presented, served and filed an affidavit containing a sufficient showing to sustain either an order granting additional time (if the application was noticed and served in time), or an order granting relief from his failure to give the notice and serve an affidavit in the time required by section 1174. The district attorney again objected to the granting of the order, and the hearing was continued until February 20th. In the meantime, on February 17th, the defendant served notice in writing on the district attorney of his intended application to the court (judge) on said twentieth day of February, 1908, for an extension of time within which to present his bill of exceptions. The application was based on the affidavit above mentioned, no counter-showing being made by the district attorney, who again objected to the court granting the application on the ground that the defendant had not complied with the provisions of sections 1171 and 1174. The court overruled these objections, took the matter under consideration, and on February 25th made an order as follows: “Motion of defendant for additional time to file his bill of exceptions is granted, and his time is extended from February 17, 1908, to and including February 29, 1908, at 10 A. M.”