People v. Padillia
Before: Rhodes
Synopsis
In a Criminal Case the Evidence Must Appear in a Bill op Exceptions.—Where a motion for a new trial is granted, on the ground that the evidence was insufficient to justify the verdict, the only manner in which the question as to the sufficiency of the evidence can be presented to the Supreme Court is by a bill of exceptions, duly settled and certified by the Judge who tried the cause.
Construction op Statute Relative to District Court Reporters.— It was not intended by the Act concerning District Court Reporters (Stats. 1865-6, p. 232), that the report of the testimony, transcribed into longhand from the reporter’s notes, should be a substitute for the bill of exceptions. Such report is only prima facie a correct statement of the evidence and proceedings therein contained, while a bill of exceptions imports absolute verity, and is not to be taken as merely prima facie correct.
Duty op Attorneys and Court as to Report op Testimony.—Before incorporating the reporter’s transcript of the testimony in a bill of exceptions it is the duty of attorneys to eliminate from it all matter not necessary or proper to illustrate the points to be presented on the appeal. The Judge of the Court should not permit the report to be used until it has been revised by him.
Transcript to Show Appidavits were Used.—Where, on an appeal from an order granting a new trial, there is no evidence to show that the affidavits contained in the transcript were used or referred to on the hearing of the motion for a new trial, they will not be considered by the Supreme Court.
Incorrect Instruction to be Considered.—Alleged errors in the instructions given to the jury may be considered on appeal, in the absence of testimony, if the instructions are incorrect in every conceivable state of the evidence.
Instruction as to Circumstantial Evidence.—In order to convict on circumstantial evidence, the evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony.
Evidence Necessary to Convict.—The evidence in a criminal case must satisfy the jury, to a moral certainty and heyond a reasonable doubt—that is, it must entirely satisfy the jury—of the guilt of the defendant, before they can convict. If the j ury are not entirely satisfied, they should acquit.
By the Court, Rhodes, J.: The motion for a new trial was made on the ground, among others, that the evidence was insufficient to justify the verdict. ■ That question cannot be considered on the record now before us. The record contains no bill of exceptions. The only manner in which that question can be presented to the appellate Court is by a bill of exceptions—or a statement, as it is sometimes called—duly settled and certified by the Judge who tried the cause. In this case, the transcript contains a longhand copy of the notes of the official reporter, certified by him to be correct; but there is no evidence that the report was used or referred to on the hearing of the motion. The same observation will apply to the affidavits which are contained in the transcript. The Act concerning District Court Reporters (Stats. 1865-6,. p. 232) provides that the reporter shall write out, in longhand, verify, and file the report of the testimony, etc.; and that the report shall be deemed prima facie a correct statement of the evidence and the proceedings therein contained.
[537]Whatever may be the value of the report on the motion for a new trial, it is very apparent that it was not intended by the statute that it should be a substitute for a bill of exceptions. A bill of exceptions imports absolute verity, and is not to be taken merely as prima facie correct. And even if a bill of exceptions were prepared, it would be a gross abuse of the provisions of the statute to make the entire report, by reference or otherwise, a part of the bill of exceptions. Por, whatever may be the grounds of the motion, or whatever may be the alleged errors of the Court, it is almost impossible that the entire report will be necessary or proper to illustrate the grounds or points. Page after page of the report, where it contains the testimony of many witnesses, may be, and usually is, taken up with matters which throw no light on the questions which are the subjects of review by this Court. There may be many protracted discussions between counsel and the Court as to the form of questions which are ultimately withdrawn, or, if not withdrawn, were asked by the respondent and overruled by the Court. There may have been a series of questions, which were propounded in many different forms, because the witness did not understand the inquiry, or because the Court required the questions to be so general as not to be subject to the objection of being leading. Many questions and answers are found to be utterly immaterial, or, if material, at the trial, were asked for the purpose of testing the recollection of the witness. In many instances the question is repeated, and the answer is again repeated; aud perhaps the answer is repeated by counsel, and the witness is asked if that is his answer to the question. And, without going into further detail, it is sufficient to say that the reports are often filled with matters which should be eliminated before the reports are permitted to form parts of bills of exceptions.
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