People v. Cole

BEATTY, C. J.

Defendant was convicted of murder in the second degree, and appeals from the judgment and from an order denying his motion for a new trial. The assignments of error upon the rulings of the trial court are very numerous, and the attorney general confesses that several of them are well founded. In view of this confession of error we deem it unnecessary to enter upon a particular discussion of many of the points presented in the brief and argument on the paft of the appellant. We will, however, advert briefly to some matters involved in the further proceedings to be taken in the case.

The attorney general, among other things, admits that the trial judge, in his charge to the jury, misstated the law applicable to the case in several particulars. In consequence of this admission, the district attorney of the county where the conviction was had asked leave to amend the record here by filing certified copies of certain instructions alleged to have been given at the request of the defendant, and which, it is suggested, contain the same propositions which are complained of in the charge of the court. We do not find that this suggestion is borne out by a comparison of the two sets of instructions, but if it were we could not take notice of the fact, for the reason that these alleged requests to charge are not authenticated in

[547]

any manner that would entitle them to he treated as a part of the record. They are not included in any bill of exceptions. Fot one of them bears the signature of the trial judge, and they do not purport to have been requested by anyone. The provisions of the Penal Code, sections 1127, 1176, 1207, and the numerous decisions of this court construing them, and the corresponding sections of the old criminal practice act, point out very plainly the mode of authenticating the charge of the court and the requests to charge with the rulings thereon, so as to make them a part of the record. These directions of the statute should be observed, for otherwise the charge of the court, and the requests to charge, whether allowed or refused, can only become a part of the record by being incorporated in a bill of exceptions. In this case the alleged requests to charge are not authenticated in either of the methods prescribed by the statute.

The condition of this record gives occasion to advert to a . fault of practice, by no means uncommon, which is productive of unnecessary expense and inconvenience. It very frequently happens that the entire charge of the court—.both that which the court has given of its own motion and the requests to charge—are inserted in the record twice, once as a part of the judgment-roll under section 1207 of the Penal Code, and again as a part of the defendant’s bill of exceptions. We would suggest that if the charges are properly authenticated, as they should be, and thus become a part of the judgment-roll, there is no more propriety in setting them out again at large in the bill of exceptions than there would be in putting the indictment or information, minutes of the plea and of the trial, and judgment in the bill of exceptions. When anything is properly in the record once, it is worse than useless to repeat it in a bill of exceptions, for the only result is to cumber the transcript with useless matter, making it more inconvenient to examine, and imposing an unnecessary expense upon the counties for printing. In this case the charge of the court, which is very lengthy, is printed in the transcript no less than three times—once as a part of the judgment-roll, where for lack of authentication it was not entitled to be placed, and twice in the bill of exceptions, where one insertion would seem to have been sufficient.