People v. Bitancourt

The Court. In this case there is a preliminary matter as to the bill of exceptions, concerning which the facts are as follows: —

The proposed bill was presented to the judge of the court below on June 6, 1887. On June 7th the appellant’s counsel filed a verified petition, stating the presentation of the proposed bill, and that the judge “ refuses to allow certain exceptions of said defendant,” [189]and praying for leave to make proof of said exceptions. Upon this petition an order was made on the same day referring the bill to the Hon. William T. Wallace for settlement.

On June 15'th the appellant’s counsel filed another verified petition in the appellate court, stating that when he appeared before Judge Wallace on June 14th, in persuanee of notice, “ it was then and there discovered ” that the bill of exceptions had been settled by the judge before whom the case was tried on June 13th, and forwarded by him to the appellate court; and that “ said bill of exceptions, as settled, does not conform to the truth,” and praying for an order directing Judge Wallace to proceed with the settlement of a bill in conformity with the facts.

Upon this second petition the judge of the court below filed an affidavit, stating in substance that he n'ever had refused to allow any exceptions, but had taken the whole matter under advisement; and that the bill had been settled by him on June 6th, “ before the issuance of the order herein by the supreme court.” The statement that the judge never refused to allow any exception is corroborated by the affidavits of the district attorney and the shorthand reporter.

On June 28th the appellate court rendered a decision that the order of June 7th be set aside for insufficiency of the petition, and because no notice of the application had been given to the judge or the district attorney, and that the petition of June 15th was insufficient, and that it be denied without prejudice. (People v. Bitancourt, 73 Cal. 1.)

On June 20th the appellant’s counsel, pursuant to notice, made a motion “ for- an order to have the bill of exceptions in the above-entitled action settled according to the facts.” And this motion was submitted.

It is settled that if the judge before whom a case was tried refuses to settle any bill of exception,—that is to [190]