People v. Romero

California Supreme Court Jul 1, 1861Published

Before: Application, Field, Mandamus

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Holding. The court held that a bill of exceptions cannot be resettled after the transcript is filed based solely on the conflicting recollections of the judge or counsel, and that a defendant who is in custody must affirmatively request to be brought into court to exercise the right to challenge the grand jury or waive that privilege.

Issues

Whether a writ of mandamus is appropriate to compel a judge to resettle a bill of exceptions when no prior demand and refusal occurred.
Whether a bill of exceptions may be altered after the transcript is filed based on the judge's or counsel's recollection of disputed facts.
Whether a defendant in custody waives the right to challenge the grand jury if they fail to request to be brought into court for that purpose.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The alternative writ and the proceedings thereon are quashed.”

“Where the existence of the alleged mistake or omission rests in the mere recollection of the Judge or of counsel in the case, and it is not admitted by the parties, a resettlement should be refused.”

Synopsis

To authorize a mandamus it must appear not only that the performance of the act to enforce which the writ is asked, is a duty resulting from the office, trust or station of the party to whom the writ is to be directed, but that the performance has been requested and refused.

When in a criminal case a mistake or omission has occurred in a bill of exceptions settled by the Judge, he may allow a resettlement, provided it be asked before the transcript on appeal is sent to the Supreme Court, and the mistake or omission is supported by documentary evidence, or is not denied by the adverse party. But where the existence of the alleged mistake or omission rests in the mere recollection of the Judge or of counsel in the case, and it is not admitted by the parties, resettlement should be denied.

So after the transcript on appeal in a criminal case has been filed in the Supreme Court, it will not be sent back in order that the statement or bill of exceptions may be changed by a resettlement, except upon like proof or admission of the mistake or omission alleged: This Court will not listen to affidavits or statements of parties as to what was admitted or proved in the course of proceedings in the Court below; and the certificate of the Judge, independent of the settled bill of exceptions, ranks no higher than such affidavits.

Errors in dates, in copies of documents, in the description of premises taken from conveyances, and the- like, can be corrected by a resettlement; and upon proper showing, made before argument, the Supreme Court may send the record back to the Court below for that purpose. So where the errors are admitted.

Where in a criminal case the accused has been held to answer before indictment, he is entitled to an opportunity to challenge the panel of the grand jury; and if this privilege bo denied Mm, the indictment found is void.

But this privilege must be asked for by the accused. He is bound to know when the jury meets, and the Court need not offer him Ms privilege of challenge, unless he first demand it.

Field, C. J. delivered the opinion of the Court on the application for Mandamus Cope, J. concurring.

On the Mandamus. The defendant was indicted for murder, and was convicted of the crime in the first degree. An appeal was taken to this Court, and a bill of exceptions prepared by his counsel was presented for settlement to the Judge before whom the case was tried, upon notice to the District Attorney of the county, and was by the Judge settled and signed, and thereupon filed. The trial of the defendant took place on the third and fourth of December, and the settlement of the hill of exceptions bears date on the twenty-sixth of the same month—the period for its preparation having been extended by order of one of the Justices of this Court. (Criminal Practice Act, sec. 435.) This bill shows that a motion was made to arrest the judgment on the ground that the defendant, being in custody and held to answer at the time of the impanneling of the grand jury, by whom he was .indicted, was not permitted to appear in the Court of Sessions, and had no opportu[91]nity to exercise his right of challenge, either to the panel or to an individual grand juror, and states that the facts set forth on this ground were admitted by the District Attorney. It is upon the exception to the ruling of the Court on this motion that the defendant relies for a reversal of the judgment. The bill constitutes a part of the record before us, the transcript of which was, filed on the third of January. In March, the Attorney General, upon the affidavit of the District Judge and the District Attorney, that the bill of exceptions was erroneous in the statement that the facts set forth and relied upon in the motion were admitted by the District Attorney, applied for a mandamus upon the District Judge, requiring him to sign a true bill of exceptions in the case. An alternative writ was issued accordingly, and has been returned with a bill of exceptions, signed by the Judge, differing in various particulars from the one originally settled, the most important of which consists in the insertion of a statement that the facts alleged as the grounds of the motion were denied by the District Attorney, instead of being admitted, and that, no proof of them being offered, the motion was overruled. The Attorney General now proposes to substitute and use this bill of exceptions in place of the one contained in the transcript. The counsel of the defendant objects to this course, and in substance, though not in form, moves that the writ be quashed on two grounds: first, that it was improperly issued in a case not authorized by law ; and second, that a bill of exceptions once settled cannot be altered after the transcript has been sent to this Court upon the suggestion of a mistake as to a matter of fact, the evidence of which rests in the mere recollection of the-Judge or of the counsel of the parties. Both of these grounds are well taken.

People v. Romero

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