Sansome v. Myers (1889) · DecisionDepot

Sansome v. Myers

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 11, 1889 No. No. 20452Published

Before: Beatty, McFarland, Works

AI Brief

AI-generated · verify before citing

Holding. A trial judge cannot arbitrarily refuse to settle a bill of exceptions based on claims of inaccuracy or incompleteness; instead, the judge must direct the petitioner to amend the bill or require the district attorney to propose necessary corrections.

Issues

Whether a trial judge may refuse to settle a bill of exceptions because it is inaccurate or incomplete.
What is the proper procedure for a trial judge when a proposed bill of exceptions is deemed insufficient or a 'skeleton'?

Disposition. Peremptory writ issued

Synopsis

Bill of Exceptions — Settlement—Mandamus.—Mandamus will lie to compel a superior judge to settle a bill of exceptions which he has improperly refused to settle; and he is not justified in refusing to settle it because it is inaccurate, untrue in many respects, meager, and partial, and a defective skeleton of the testimony and evidence. It is the duty of the judge to settle the bill of exceptions, though he may require it to be corrected, if incorrect, before signing it; but he has no right to refuse to settle it in the first instance because of its imperfections. The judge may require the party to make and present a proper statement, if it is incomplete.

Opinion — Works

Works, J. A statement of this case will be found in 77 Cal. 353, where the allegations of the respondent’s answer are stated. We there held that the answer was sufficient. Subsequently the issues arising upon the petition and answer were referred for trial and determination to Hon. W. 0. Van Fleet, judge of the superior court of Sacramento County, with directions to report his findings to this court, which he has done.

The findings are as follows:—■

“ 1. That said proposed bill was noticed for settlement on the seventeenth day of April, 1888, and was on said day called up by petitioner’s counsel before said respondent judge for settlement, but was, at the request of the district attorney, continued to the twenty-fourth day of April, without at that time any examination or discussion of its contents. On said twenty-fourth day of April, petitioner’s counsel again called said proposed bill to the attention of respondent, at which time the dis[484]trict attorney, through his assistant, objected to the settlement of said bill, on the ground that it was not a fair and truthful statement of the proceedings at the trial,- and was a mere skeleton thereof. These objections were verbally made during the argument by counsel, in which he went over said proposed bill, and pointed out what he conceived to be the defects and objectionable features thereof. During a reply to this argument by the petitioner’s counsel, the proceedings were interrupted .by other business of the court, and the further hearing of said matter was continued by respondent to the first day of-May. On that date counsel for the prosecution being absent, the matter was again postponed, and no further consideration thereof had until the eighth day of May. At this last date the prosecution renewed their objection-to the settlement of said bill, and after some argument by both parties, the respondent refused to settle said bill, and made his indorsement thereon, wherein he set forth his reasons for said refusal. Said indorsement will be found attached to said original proposed bill, which is hereafter referred to and made part of these findings. The prosecution did not at any time present amendments to said proposed bill, but contended that it was a-mere skeleton, and that neither they nor the respondent were called upon to amend the same or make it truly present the facts, and that it was petitioner’s duty to-present to respondent a fair and truthful bill for settlement. The petitioner, contending that said bill was good and sufficient in substance, did not at any time ask permission to correct or amend the same; nor did the respondent at any time make any direction or suggestion to the petitioner’s counsel to take said proposed bill and amend or change it in any respect; and the statement in tha answer of respondent herein, that continuances of the settlement were had to enable petitioner to present a full and fair bill,-is not sustained by the evidence, but is repudiated by the respondent.”

Related research

Concurrence — Beatty

Beatty, C. J., concurring. In addition to wliat has been said by Mr. Justice Works, — in whose conclusion and views I concur,—I wish to say that, in my opinion, the fault imputed to the proposed bill of exceptions in question here, viz., that it is too meager,— is one that is entitled to some indulgence.

The great and crying evil is, not that such draughts are too short, but that they are generally too long, and that, being allowed substantially on the scale and in the form in which they are presented, the counties are burdened with the expense1 of transcribing or printing masses of rubbish which serve merely to cumber the records and waste the time of this court.

We have decided that the judges of the superior courts are justified in refusing to settle, a bill of exceptions where the draught proposed contains a full transcript of the "short-hand notes of the trial (People v. Sprague, 53 Cal. 423), and over and over again we have called attention to section 1175 of the Penal Code, which provides: “A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken; and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein.”

Possibly some good has been accomplished by these admonitions, but the evil referred to, if ameliorated, is by no méans cured.

For this reason, I repeat that if counsel in a particular case happens to commit the unusual error of making his draught too brief, the fault is one that merits some indulgence, especially as it cannot result in any very serious inconvenience to the judge who is called upon to settle the bill of exceptions.

In our practice, the motion for a new trial is always made before judgment (Pen. Code, sec. 1182), and without any preliminary statement of the evidence or specifications of error. (People v. Fisher, 51 Cal. 319.) If [489]one of the grounds of the motion is that the verdict is contrary to the evidence, that ground will generally be abandoned after the motion is overruled, in all cases where there is a substantial conflict of evidence upon the material issues, and there will be no exception to the order on the ground that the evidence is insufficient. If, however, the defendant insists upon presenting the. question of the sufficiency of the evidence to this court upon appeal, he is forbidden to make a complete transcript of the reporter’s notes into his proposed bill of exceptions, and must put the testimony of the witnesses-in narrative form, with as little repetition as possible. In-attempting to do this every lawyer, even the most experienced, is liable to err on one side or the other, and usually, as we have, seen, his error is in the direction of unnecessary prolixity. In such case it is made the duty of the judge who settles the bill of exceptions to strike out all redundant and superfluous matter, as well as to see that what remains conforms to the truth. This necessarily involves a careful reading and comparison of the draught with the reporter’s notes or other record of the proceedings, and it follows,'of course, that the longer the draught the greater is the amount of labor imposed upon, the judge. If, on the other hand, it happens, as in this case, that the draught of the bill contains no adequate statement of the evidence, it is a very simple matter, involving a trifling amount of labor, to remedy the defect.

If the omissions are comparatively slight, the judge, with the assistance of the district attorney, may suggest the necessary amendments. If the omissions are serious and extensive, counsel may be required to present a full statement of the evidence for the people, or to abandon his exception on the ground of insufficiency of the evidence. If he refuses or neglects to do either, then the judge would be justified in adding to his statement of the evidence a general statement that other evidence was [490]introduced on the part of the people tending to prove all the allegations of the indictment or information, which is all that would be necessary to render the exception harmless.

As to other grounds of exception, the statement of evidence necessary to present them fairly is usually short, and even when it is unfairly set out in the draught no great amount of labor is ordinarily required to amend it. It is better, in my opinion, that the judge, with the advice and assistance of the district attorney, should perform such labor than refuse to settle the bill of exceptions, upon the ground that counsel preparing the draught has attempted to practice a fraud upon the court, unless the evidence of such design is far more gross and manifest than it can be said to be in this case.

Paterson, J., concurred.

Sansome v. Myers

AI Brief

Synopsis

Opinion — Works

More from California Supreme Court

Related research

Concurrence — McFarland

Concurrence — Beatty

AI Brief