Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-12-08

the 1allur6 OF q Judge 70 settle or sign state
ment within limited time. A variety
of circums ances-even when the utmost dill
gence has been exercsed-may prevent the
settlement and signature The destruction, by
fire or other accident, of the records-the sick
ness or death OF counsel or Judge may intervene.
To hold that the rights of the prisoner would be
absolutely lost, under circumstances of this ma
ture, would be to sink the evident spirit and
intent of the statute into an observance of the
mere letter. But though the statute is only di-
rectory upon the Judge, it is not on that account
to be thu less observed by him. twas intended
to prevent delays. and to require the prepare
ton and settlement whilst the evidence and
rulings of the Court fresh in the recollection
of the Judge and counsel. For that purpose the
defendant must prepare his bill, and tender it
within the time designated, or such additional
time as may be granted by the District Judge, or
a Judge OF the supreme Court, or give good and
sufficient excuse for his failure TO do so. When
such excuse is shown the Judge should settle
and sign the bill-otherwise, not
And also to the case OF Sprague, supra, where
the Court quotes TINS language approyingly, and
says:
IF, Tor sufficient reasons counsel has not
been able TO prepare bill of exceptions within
the statutory time, one should he prepared as
soon as may be afterwards, and be presented or
filed latter notice TO the District Attorney)
accompanied by afiidavits accounting for and
intended to excuse the delay"
From the foregoing 1t would seem that our
Supreme Court has construed Section HI of
our Penal Code, in so FAR es it fixes the time
within which bills of exceptions shall be settled
and certified, TO be directory merely: that in
other words no infexible or iron rule as TO
mere matter of time was intended to be i'm
posed by the Legislature TO defeat rather than
promote justice but that, in view OF the num-
berless and unforeseen. and at the same time
excusable causes of delay that win arise in the
course OF judicial proceedings, it should be left
to the Courts, IL the exercise Of that discretion
gTy power which is Indispensable 10 a lust and
humane administration Of our penal laws and
to permit that to be done, under proper circum-
Stances which q strict adherence to the letter
of the statute would deny, and denying defeat
the only end which the law seeks TO attain.
The discretion, however, which is to be exer-
cised by the Court Judge i'll this in all other
instances is intended to be a sound judicial dis
erection, founded upon just and legal ground
of excuse as contladistinguished from mere
arbitrary assertion of personal will power on
the part of the individuals and unless a proper
case is presented calling for the exercise of the
discretionary powers of the Court or Judge,
their employment would be an abuse rather
than a right use.
Now, applying this rule TO the facts of this
case, are the circumstances here shown such as
TO justify the Judge, in the exercise of a sound
legal discretion III settling and certifying this
last proposed bill? ! think not. The evidence
shows that the defendant in this case was af-
forced, III addition 10 the time allowed by the
statute, very generous period within which to
prepare and serve his bill of exceptions the
time being repeatedly extended by the Judge
upon application of his counsel, that every on
portunity might be afforded him TO take advan-
tage OF any error that might have crept into his
case, and oy which he conceived himself preu-
diced by presenting it in proper form to tue
higher Court At the eleventh hour ne presents
for the consideration of the Court proposed
bill, IN a form which he must have been aware,
IN fact was bound to know, could not be enter
tanned or allowed. After the lapse of another
long periOd-over two months considerable
this prOro-cd bill IS for the first time called TO
the attention OF the Judge; and finding that the
bill could not be allowed in its then reprehen-
slble form, the t-+sndant for the first time at
tempted to tornu,e.- proper bill and present
the same Tor settlement. And Notwithstanding
the time allowed for that purpose had long
since expired, this new bill is presented and
suggestion, 10y afidavts or otherwise, be-
ing offered in excuse for this most
protracted delay. It seems to me that this
Is ineXcuSabie. As suggested in Lees case
supra. one of the reasons why, in all cases ex-
cept for good cause shown by way of excuse
the limitation OF the statute should be adhered
10, Is that the facts and circumstances of the
case may be fresh in the minds of Judge and
counsel. The force OF that suggestion was
Strkingly illustrated i'll this case. 1t appeared
al the nearing that the first order extending de-
PENDANTS time 10 propose bill was granted in
open Court and, through temporary absence
from the Court room or other inadveTtent cause
the Clerk had failed to get a memorandum of
The order, and 1t was never entered. ConSe-
quently it did not appear of record The cir
cumstance of its making, owing to the multi
phcity OF such mlt,eis and the lapse of time,
had passed from the minds of Judge and coun-
sci alike, and had it not been for collateral
circumstance refreshing the memory of one of
'efendant's counsel, from which he was able to
testify to the granting of the order, the fact
could not have been found.
This but serves to demonstrate the necessity
OF requiring that the g matters be brought
promptly 10 the attention of the Judge; and such
considerations doubtless dictated the rule laid
down by the Supreme Court. that all due dis
patch must be used compatible with the circum-
stances of the case, and that if delay intcryenes
ii must be satisfactorily accounted for and ex-
cused before the Judge is authorized TO act ANY
other rule would be subversive OF the evident
into Il rF.F+l
Is to be given such reasonable time as the cir
cumStances demand, but he will not be permit
ted TO wear out and defeat justice by dragging
his steps so slowly that the facts of his case are
forgotten, and fair record rendered doubtful
II not impossible. Nor is he to be allowed to so
delay the perfection of his record that when
finally, after an indefinite period. his case is
heard in the appellate Court and for some rea-
son, meritorious or otherwise, it is deemed
necessary 10 remand it for new trial, it comes
back, to find that the evidence has been dissj-
pated and scattered by death or removal of wit
nesses, new officials in Office unacquainted with
and unin;ereSted in the facts of the case the
pubic interest IN bringing the offender to JUS
tice duiled and discouraged by lapse of time,
and that condition of things existing generally
with reference to the case which render its final
dismissal necessary, while the offended law goes
unsatisfied.
All these considerations have force and ap-
phcation under the circumstances of this case
and defendant was bound to recognize that the
Court could not, as against proper objection
thereto, settle or allow this bill, in the absence
of any legal excusatory showing on his part
While it should always be the desire and aim of
Courts and Judges that defendants be afforded
every proper and legal opportunity to present
their cases fully and fairly, Judge is not war
ranted in permitting that desire to carry him
outside a proper and just administration of the
law. And TO settle this bill under the circum-
stances would be in my judgment to do arbi-
trary violence to the very principle that defend
ant invoked. Consequently, shall for the rea-
sons stated, refuse To entertain either of the
defendants proposed bills of exception, unless
directed so to do by the proper tribunal
II is. therefore. ordered that both the bill pro-
posed by defendant ON August 18th, and the bill
as proposed the 18th d3y of November be
and each of them be stricken from the files
OF this Court. W. c. VAN FLEET.
Judge of Superior Court.
nppasnbar