People v. January

Searls, C. J. — Defendant was indicted by the grand jury of the county of. Sacramento for the crime of embezzlement, in having fraudulently appropriated to his own use the sum of $39,549.25, the money and property of one W. A. January, intrusted to him as the clerk, agent, and servant of the said W. A. January.

A trial was had before a jury, and a verdict finding [180]defendant guilty of the charge set forth in the indictment was rendered. Thereupon a judgment was rendered by the superior court of Sacramento County, to the effect that the defendant be imprisoned in the state prison for the term of ten years. From this judgment an appeal was taken to this court. No bill of exceptions setting forth the evidence in the case was ever settled by the judge of the court below, and hence the appeal is to be heard upon the judgment roll.

What purports to be a copy of the charge of the court to the jury is embodied in the transcript and certified by the clerk, but without authentication by the court, judge, or reporter.

The cause was tried in 1885, and the appeal taken to this court in 1886.

The only attempt at an authentication of the charge of the court to the jury is found in a statement filed in this court May 16, 1888, containing substantially, but not literally, a copy of the alleged charge of the court, verified by the short-hand reporter on the second day of May, 1888, as being a correct transcript of the charge actually given, upon which is indorsed, under date of May 16, 1888, the refusal of the judge who tried the cause to certify to the truthfulness of the charge.

It is claimed by respondent that the purported copy of the charge forms no part of the judgment roll, and not being incorporated in a bill of exceptions, cannot be reviewed by this court.

The judgment roll, or “record of the action,” consists of, — “1. The indictment or information, and a copy of the minutes of the plea or demurrer; 2. A copy of the minutes of the trial; 3. The charge, given or refused, and the indorsements thereon; and 4. A copy of the judgment.” (Pen. Code, sec. 1207.)

Section 1176 of the same code provides that “when written charges have been presented, given, or refused, or when the charges have been taken down by the re