Opinion
Application for writ of mandate to Hon. D. J. Toohy, judge of the Superior Court of the city and county of San Francisco, to compel the settlement of a bill of exceptions.
COUNSEL
Adair Welcker, and John D. Whaley, for Applicant.
D. J. Toohy, Respondent, in pro. per ., cited Sprague v. Fawcett , 53 Cal. 408, and Gallardo v. Atlantic and Pacific Tel. Co ., 49 Cal. 510.
JUDGES: In Bank. Works, J. Paterson, J., McFarland, J., Sharpstein, J., Beatty, C. J., and Thornton, J., concurred.
OPINION
WORKS, Judge
The appellant makes application for a mandamus to compel the judge of the court below, who has retired from office, to settle and sign a bill of exceptions in this case.
The motion for a new trial was denied, and judgment rendered March 3, 1888, and on the 12th of March fifteen days additional time was given within which to file the bill of exceptions. The affidavit of the attorney for the defendant shows that a draught of the bill was presented for settlement on the twenty-fourth day of March, but the judge who tried the case makes affidavit that it was never presented to him for settlement, and the minutes of the court, which are made a part of his return to the alternative writ, is silent on the subject. There is nothing to show that the proposed bill of exceptions was ever served upon the district attorney, or that notice of the presentation of the same for settlement was given him. There is an affidavit by a former attorney of the defendant, that on the sixth day of March, the assistant district attorney, in open court, waived the two days' notice required, and the appellant then presented the proposed bill to the judge for settlement; but if any such action was taken in open court, it does not appear of record. The same attorney makes affidavit of the same waiver of notice, and presentation of the proposed bill of exceptions in open court on the twenty-fourth day of March, but the record discloses nothing of the kind, and as we have said, the judge denies that the proposed bill was ever presented to him for settlement.
There is nothing to show that any showing was made to the judge that the two days' notice required by section 1171 of the Penal Code was given, or that it had been waived, nor is it shown that the waiver claimed to have been made was ever brought to his attention before instituting this proceeding. Therefore, leaving out of consideration the conflicting evidence upon the question, whether the proposed bill was ever presented or not, it does not appear that the judge has improperly refused to settle the bill of exceptions. (People v. Sprague , 53 Cal. 422.) Beside, we are of the opinion that where the defendant, in a criminal case, relies upon a waiver of the notice required by the statute, such waiver should be made of record, or by some writing, and not be left to the uncertainty of human memory.
Writ denied.