Brown v. Prewett
Before: Beatty
Synopsis
Criminal Law—Bill oe Exceptions—Directory Statute — Excusable Delay in Presenting Bill — Duty of Judge. — The practice in preparing and presenting bills of exceptions in criminal cases is regulated by section 1171 of the Penal Code; but the rule of the statute as to timé of presenting the bill is directory, and the judge has power to settle a bill presented after the lapse of the statutory time, or of the time granted in addition thereto, and it is his duty to settle it, if the failure to comply with the statute is shown to have been unavoidable or excusable; hut if the delay is not excused, the judge may and ought to deny the application.
ID,—Excusable Delay a Question of Fact—Discretion — Mandamus. —Whether or not the delay of a party in presenting a bill of exceptions is excusable is a question of fact to be determined by the judge acting judicially upon the evidence submitted pro and con, and his decision cannot be controlled by mandamus, unless his refusal 'to act involves an abuse of discretion.
Id. —Blamelessness of Defendant. — The fact that a defendant in a criminal action is personally blameless for delay in presenting a bill of exceptions, although a fact to be considered by the trial judge in determining his action in settling the bill, is not conclusive.
Beatty, C. J. This is an original proceeding by mandamus to compel the respondent to settle a bill of exceptions in a criminal case. The cause has been submitted upon a general demurrer to the petition. The facts alleged in the petition, and admitted by the demurrer, are, that on the 19th of January, 1891, the petitioner was accused, by information, of the crime of grand larceny, and was thereupon tried and convicted. After some delays, granted for the purpose of enabling the official reporter to transcribe his short-hand notes of the testimony, a motion for a new trial was submitted and overruled, and sentence pronounced on May 16, 1891. The petitioner at once appealed from- the judgment and order, obtained the certificate of respondent that there was probable cause for the appeal, and an order admitting her to bail, and fixing the amount thereof pending the appeal.
Up to this point the petitioner had been represented in all stages of the prosecution by one of two members of a firm of attorneys. Both rvere nominally her counsel, but actually the case had been conducted by one of them exclusively, and the other was entirely unfamiliar with it. The evidence was vohiminous, covering some eight hundred type-written pages.
From the date of the judgment, May 16th, to June 3d, a period of eighteen days, the attorney who had repre[505]sented petitioner as her counsel was sick, and although able on two or three occasions to appear in court, was too infirm to undergo the labor of reducing the reporter’s notes of the trial to the form of a bill of exceptions, and his partner, also nominally of counsel, made no effort to do so, apparently because he was not familiar with the case.
On June 3d, another attorney was substituted as counsel for petitioner. He, on July 15th, prepared and served a draft of a bill of exceptions on the district attorney, who inadvertently, as he claims, accepted service without reserving any objection that it had not been made in time. Within an hour afterwards, however, and while the paper was still in the possession of counsel for petitioner, he took it, and, without the consent of said counsel, qualified his acceptance of service by adding the words, “ without waiving objection that time has expired.” An attorney, acting as special counsel for the people, and aiding the district attorney in the prosecution, was present at this interview, and then and there stated to counsel for petitioner that he would not insist upon the point that the bill had not been filed or presented in time.
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