#### Lynch vs. State.

March 15.

üpon the argument of a criminal cause in this court, the counsel acting for the state alleged that the bill of exception^ did not present the facts truly, and the counsel for the prisoner entered into a stipulation referring the bill of exceptions to the counsel for the state in the court below, for such amendments as they might think proper, and agreeing to file a further stipulation to be signed by himself and his client, by which such amendments should be incorporated in the bill of exceptions; but when the amendments were certified by the counsel for the state in the court below, the counsel for the prisoner declined to file any further stipulation making them a part of the bill of exceptions, on the ground that his agreement to do so was improvidently made, &c. *Held,*that the amendments thus certified should not be ordered to stand as part of the bill of exceptions, but it appearing from the affidavit of the judge of the court below, that the bill of exceptions differs in many important points from the bill as he intended to make it, it should be referred back to that judge to be resettled according to the facts.

ERROR to tbe Municipal Court of tbe City of Milwaukee.

Tbe case is stated by tbe court.

*Mat. H.*Carpenter, for plaintiff in error. '

*Joshua Stark,*for tbe state.

*By the Court,*

PAINE, J.

This is a criminal case, brought here upon a writ of error. It was partially argued, when, upon a claim by tbe counsel acting for tbe state that tbe *39bill of exceptions did not present truly tbe facts of tbe trial, tbe counsel for tbe prisoner entered into a written referring tbe bill to Messrs. Eyan and Butler, tbe counsel for tbe prosecution in tbe court below, to make sucb amendments as they should say ought to be made, and-further agreeing to file a further stipulation to be signed by himself and bis client, by which sucb amendments should be incorporated into tbe bill of exceptions. A number of amendments were certified by tbe gentlemen' referred to, but tbe counsel for tbe prisoner refused to file any further stipulation making them a part of tbe bill of exceptions, as contemplated by tbe stipulation already on file. He declined upon tbe ground that this stipulation was improvidently made, and that bis duty to bis client required him to refuse to abide by it. Tbe counsel for tbe state now asks that tbe amendments so reported shall be ordered to stand as a part of tbe bill of exceptions, or else that tbe bill be referred back to tbe judge of tbe court below to resettle according to tbe facts. We are clearly of tbe opinion that tbe first motion cannot be granted. If amendments are to be made here to tbe record returned from tbe court below, it can only be by stipulation. And it is obvious that tbe stipulation now on file does not purport to make tbe amendments to be returned, a part of tbe bill. It only agrees to file a new stipulation which should have that effect, but this has never been filed. It might be that tbe court could require a party to abide by a stipulation fairly made, in some cases, but we do not feel inclined to interfere to enforce one like tbe present by requiring a further act to be done, which by its terms was necessary to give it full effect. It was certainly somewhat extraordinary in its character, referring, as it did, tbe settlement of tbe bill of exceptions in a criminal case to tbe counsel for tbe prosecution. We are satisfied that it was done hastily, and as tbe result of a very natural desire to adopt tbe most thorough means of repelling any charge of unfair practice in settling tbe bill as it now is, which charge may perhaps be gathered from tbe affidavit of tbe judge of tbe court below. Under these circumstances we must refuse to order that tbe reported amendments become a part of tbe bill of exceptions.

*40mo^on re^er back to tbe judge below for amendment must be granted. We do not grant it, bow-ever, Up0n any belief tbat any fraud or unfairness was used by the counsel for tbe prisoner in procuring it to be settled in its present form. We feel bound to say tbat we are satisfied from tbe affidavits presented tbat such could not bave been tbe case. Yet tbe judge swears tbat tbe bill as it now is, differs in many important points from tbe bill as be intended to make it. Of tbis be is positive. And altbougb we tbink tbe defects must bave resulted from a mistake or misapprehension on tbe part of tbe judge or of counsel, or of both, in tbe former settlement, we do not see bow, upon a positive affidavit of tbe judge wbo tried tbe case, like tbe one before us, we could refuse to send tbe bill back for correction.

Of tbe power to refer it back for tbat purpose there is no doubt. And we tbink tbe positive affidavit of tbe judge, altbougb somewhat general in its statements, together with tbe fact tbat tbe counsel for the prosecution bave, in pursuance of tbe stipulation referred to, reported a very large number of amendments, which they say ought to be made, presents a case where the power should be exercised.

Tbe motion to refer tbe bill of exceptions back to tbe judge of tbe municipal court, is granted.