Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-12-08
THE JANUARY CASE.
Judge Van Fleet Refuses to Settle Al
low Defendants Bill of Exceptions.

Judge Van Fleet yesterday made the fol-
lowing order in the January case. 1t is
presumed that the defendant will apply to
the Supreme Court for writ of mandate,
directing the Judge to show cause before
that body why he does not settle and allow
a bill OF exceptions:
The People VS.. A. D. January-On the goth
day of November, 1855, a proposed bill OF ex-
ceptions ON behalf of the defendant in the
above entitled cause was presented to the Judge
who tried said cause for settlement. The Dis
trict Attorney and his associate appearing ct
the time interposed, and filed in writing mo-
ton to strike sad proposed bill from the files of
said Court and that the settlement thereof be
denied upon several grounds set out in detail in
said motion, but which may be briefly stated
thus:
First-Because the bill as then proposed was
not the same bib proposed by the defendant
within the time given for that purpose, for the
reason that the same, subsequent TO the first
presentation, had been mutilated and inter
lined. and portions thereof bodily cut cut and
extracted. and new matter inserted therein.
SeconG-Because said bill as originally pro-
posed was not bill of exceptions within the
provisions of Sections III and li74 of the
Penal Code. for the reason that it was substanti
ally but iong-hsnd transcript Of the reporter 5
note ofthe proceedings and testimony taken at
the trial.
Third-That said bill as now proposed was not
prepared represented until long after the expi-
ration OF the time within which defendant was
entitled and required to present his bill Of ex-
eeptions.
Fourth-That no notice was served upon the
District Attorney Of the presentation of said
bill as iiis' proposed, and
Eifth-Because the notice OF the presentation
of said bill as now proposed was served long
after the time had expired within which de-
PENDANT could present such bill or give notice
thereof said motion was based upon the
record and minutes in said case, said proposed
bills OF exceptions ana oral testimony.
The defendant admitted that the bills, AS
originally proposed. had been changed, and
tbereupon proposed and presented both the
bills rs originally proposed and the bill as HOW
proposed, and asked that they be together set
tied and allowed.
From the record and other evidence intro
duced, it appears that the verdict in this case
was rendered on the 30th day of april, 1885
that the date OF passing sentence was thereafter
continued from time 10 time upon motion of
defendant, until the 18th day of june, when the
Judgment Of the Court was pronounced that
thereafter, aud within the ten days allowed by
law for that purpose, the defendant asked. and
the Court granted, thirty days additional time
within which to prepare and serve his proposed
bill OF exceptions that on the 4th day OF august,
on application of defendant said time was again
extended by order of the Judge, to August
10Th, and on the 18th day of August said time
was IN like manner still further extended TO the
10th of August.
That or the 10th day of August one OF the at
torneys for defendant presented to and left with
the CLERK. in the absence of the Judge, Il pro-
posed Till Of exceptions IL said case, and on the
same day said attorney, not finding the District
Attorney in the city OF Sacramento, and finding
his Office locked, so that entrance could not be
gained thereto showed under the door of said
office a notice that said proposed bill had been
left with the Clerk, and that the same would he
presented for settlement on the 30th day of Au-
gust. Nothing further was done towards the
settlement OF sad proposed bill until the 3iSt
day Of October, when one of the defendant S
attorneys. IN the absence of the District Attor-
ney. ana without notice of his intention so to
4 4
with d request that he settle and certify the
same. That upon examination by the Judge
il appeared that with the exception OF lew
pages, of original matter consisting of the cap
ton and Specifications of error, said proposed
bill was substantially but long hand trans
script of the reporters notes OF the evidence and
proceedings taken at the trial, with portions
thereof erased by drawing a pen through the
lines. That by reason of that fact, and the fact
that 10 notice had been given to the district
Attorney, of said presentation said Judge re-
fused to settle and certify said BILL or act upon
the same at that time, and Informed the defend
ants attorney that he would not take action in
the premises without notice being served upon
the District Attorney.
That thercupon defendants attorneys took
said proposed BILL and cut and extracted there
from some tlIty-stX pages thereof, consisting OF
that portion constituting the reporters tran
script of testimony, and replaced said matter
with what purports and is represented to be
statement III narrative form of the substance of
the testimony and after making some further
alterations in said i'll, in the way OF adding
some specifications of error not in the original
bill together with a statement that the bill con-
tains in substance all the evidence introduced
at the trial, said bill, in its altered FORM was on
the 18th day of November delivered 10 the Clerk
and notice served upon the District Attorney
that said bill would be presented to the Judge
Tor settlement ON Monday, the 10th day of No
vember.
Upon these facts the District Attorney now
asks that the said bill, as delivered to the Clerk
on August 18th, be stricken from the files and
denied settlement
First-Because no notice of its presentation
was served upon him. And he asks that the bill
as proposed November 18th be likewise stricken
out and denied settlement, upon the ground
that the same is presented too late and no
excuse whatsoever is offered or given for the
delay.
think the motion must be granted, without
question as the bill of August 18th on both
points. With reference to the objection to the
form of hat bill. II is clear to nay mind that
should be wholly unjustihed in settling and
certifying it. bills of exception of like make
up have been so severely and repeatedly criti-
ciSed and pronounced reprehensible by our Su-
preme Court, that it would be Inaccessible on
my part TO permit such a record II go, with my
sanction before that tribunal. II would, Justly,
subject me to censure. The language of our
Supreme Court in criticIsing bill of like char
actcr in the case of People vs. Getty, 10 Cal, $751;
may be quotes by me with striking a pposte-
ness in disposing of this point, where the Court
ION page 5o4 of their opinion) say
q" The bill of exceptions appears TO consist of
the reporters notes, written out in long-hand,
containing the questions ana answers Ill luli,
and the side bar conversations and remarks OF
the Judge. counsel jurors and witnesses In no
conceivable case can il be necessary and proper
that bill of exceptions should be mace up in
this manner. Ii was never intended that the
reporter notes should constitute a bill of eX-
ceptions. The evidence relating TO the points
presented should be stated, as far rs possible,
in narrative FORM or by a statement of its sub
stance, or which IL tended to proven, and the
questions should be stated only when it is nee
cssary to present the point of all objection
thereto.
"a The practice of making up bills of excep-
lions in the reprehensible form adopted in this
case has become so prevalent that some meas
urcS must be adopted for its correction. The
Judge of the Court below would be justified in
refusing TO settle u proposed bill Of exceptions
when it is presented in that form, and we are of
the opinion that 1t Is his duty to strike it from
the files"
And in the case of People vs. sprague (53 Cal,
~ the same Court says: " The District Judge
fully justified in refusing to settle aad cert
fy the bills of exceptions so called filed on the
10th and 18th of September. The first was u
mere skeleton, containg no statement of evil
dence or rulings; the second was in the form
pronounced 'reprchcnsihle in People VS..
Getty"
AS to the point that no notice was served on
the District Attorney o; this bill OF August 18th,
| am Of opinion that no service was had by the
means aduptcd-that of showing the notice I'M
der the locked door of the Office. This method
of procuri, s service finds no warrant in the
law.
While am inclined to think that in instances
of this kind, since the Penal Code is silent as to
the manner in which service shall be made
that personal service is contemplated, yet il
might be deemed sufficient had defendant at
torney proceeded in the manner pointed out in
SubdiviSion1 OF Section l0ll, Code of Civil Pro-
cedurc and it appeared that the notice actu-
ally came TO the hands of the party. But that
method was not pursued here, and am unable
10 find from the evidence that the District Attor
ney ever saw this notice. He says in histesti-
mony &c do not remember ever to have seen
this notice, and did not know it had been
served Clearly this was no service.
Upon the subject of requiring notice to the
District Attorney in like eases the supreme
Court says. in People vs. Sprague, supra
Another circumstance made it the duty of
the Judge 10 refuse to consider the bills proposed
by the defendant. No notice was given TO the
District Attorney Of defendants Intention to
present either of the two drafts as required by
Section HI of the Penal Code. 4
clause of the section provides that the delivery
of the DRAFT oil of exceptions to the Clerk shall
be the equivalent OF a presentation of it to the
Judge personally but defendant cannot relieve
himself of the necessity of serving notice on the
District Attorney by handing the draft to the
Clerk: The evident purpose of tho section is
that the District Attorney shall, in every case
have an opportunity 10 suggest amendments"
so III this case, ii was the duty of defendant
of which he cannot be relieved, to see that the
District Attorney received notice of the presen-
tation of his proposed bid.
Now with reference 10 the bill as proposed and