People v. Thompson

Temple, J. The defendant was convicted upon a charge of derailing a railroad train, and unlawfully boarding a train with intent to rob the same. This appeal is from an order refusing a new trial, and the only points made are that the court erred in giving certain instructions.

An appeal from the judgment was separately taken, and there being no bill of ..exceptions to be settled—as the points arose upon the demurrer—that appeal reached here first, and was long since decided. (People v. Thompson, 111 Cal. 242.)

On the former appeal from the judgment no points were made with reference to the instructions, and, as there was no bill of exceptions, such points could not have been presented to the best advantage. Still, the defendant might have had a bill of exceptions on the appeal from the judgment, in which so much of the evidence as was necessary to illustrate his points could have been set out.

The code expressly provides (Pen. Code, sec. 1176) that the instructions given or refused, whether in writing or taken down by the reporter, with the indorsements thereon (showing whether given or not) constitute a part of the record, and the rulings may be reviewed on appeal as though embodied in a bill of exceptions.

In criminal cases, if a motion for a new trial is made, it must be denied before judgment is entered against the defendant. Section 1172 of the Penal Code provides for an exception to an order denying a new trial. The order denying a new trial is therefore an order made before judgment, and may be reviewed on an appeal from the judgment. There is, therefore, no real necessity for an appeal from an order denying a new trial. Still the code provides for an appeal from the judgment and from an order denying a new trial. (Pen. Code, sec. 1237.) Now it is suggested that because there has been an appeal from the judgment, upon which the alleged errors in giving the instructions might have been considered, they cannot be considered on this [162]That is to say, a defendant is at liberty to present such questions either upon an appeal from the judgment, or upon an appeal from an order refusing a new trial, but be cannot do both. Furthermore, it is contended an affirmance of the judgment on appeal is final as to questions which were or might have been presented on that appeal. It would, therefore, follow that if he could have had a record which would have presented his point and did not, he has lost his right to be heard.