State v. Baker

Criminal Practice — Time of Settlement of Bill of Exceptions. Section 423 of the Criminal Practice Act, requiring bills of exception to be settled, signed and filed -within ten days after trial, is directory ;,but if not so settled and signed -within the time prescribed, some reasonable excuse should be given for the delay. Appeal — Papers not Noticed unless Part of Record. The Supreme Court will not, on appeal in a criminal case, notice an affidavit made in the court helow, unless it be embodied in a bill of exceptions or a statement properly certified. Refusal to Settle Exceptions to be Properly Excepted to. Where a motion to settle a bill of exceptions in a criminal case was refused on the ground that it was not presented in time and that the affidavit on the motion did not show sufficient excuse for the delay; and on appeal there was no bill of exceptions or statement embodying such affidavit: Held, that thé Supreme Court could not regard the affidavit or consider whether it showed sufficient excuse or not. Clerk’s Minutes of Peremptory Challenges not Parts of Record. The Criminal Practice Act does not require the clerk to make any minutes of peremptory challenges ; and if he does make such minutes, they will not he considered as parts of the record or reviewed on appeal, without a bill of exceptions.

Appeal from the District Court of the Ninth Judicial District, Elko County. This was a prosecution for the crime of robbery, alleged to have been committed by robbing J. N. Johnson on November 5, 1870, in Elko County, of $2992 50, the property of Wells, Eargo & Go. There were four persons charged in the indictment: Daniel Baker, Leander Morton, Daniel Taylor, and George-Lee. Baker, Morton and Taylor were tried together in January, 1871; convicted as charged, and sentenced to' imprisonment in the State prison for the term of thirty years. The document purporting to be a transcript on appeal contained copies of various minute entries and, among other things, copies of a notice of motion to settle a bill of exceptions, which was refused, and of the affidavit upon which such motion was founded, but no bill of exceptions or statement of any kind. ,, The minute entries stated in detail that defendants had peremptorily challenged five jurors, giving their names, and proceeded: “Attorney for defendants then peremptorily challenged WT. A. Kindred, which was overruled by the court on the ground that the defendants had exhausted their challenges, no more challenges being allowed for defendants. Attorney for the defendants excepted to the ruling.” The affidavit on motion to settle the bill of exceptions was that of one of defendants’ attorneys, giving’ as an excuse for not presenting the bill for settlement within ten days after trial thatffie had been compelled to be absent and to leave the matter of such exceptions in the hands of his associate; that such associate had neglected it, and that defendants themselves had been informed and supposed that every thing necessary had been done. The appeal was from the judgment, and was instituted by and on behalf of defendant Daniel Taylor alone. I. The court below erred in refusing to sign and settle the bill of exceptions tendered by appellant. Section 423 of the Criminal Practice Act, requiring the bill of exceptions to be settled, signed, and filed within ten days after trial of the cause, is purely directory; and where sufficient excuse exists and is shown for the failure to do so, the bill should be signed. People v. Let, 14 Cal. 510; People v. White, 34 Cal. 183; People v. Kahl, 18 Cal. 432; People v. Woppner, 14 Cal. 437. The affidavit shows sufficient excuse. II. The record to-be made up in all criminal cases upon conviction had, is required to include ‘ ‘ a copy of the minutes of any challenge which may have [been] interposed to the panel of the trial jury, or to an individual juror, and the proceedings thereon.” Crim. Pr. Act, Sec. 451. The record here shows that four or not to exceed five peremptory challenges were permitted or exercised by defendants. The correctness of the record is presumed upon both principle and authority. As now the copy of the minutes must show any challenge interposed to a juror and the .proceedings thereon, so it must show every challenge; and as what is embraced in this record in the way of copy of minutes is required to be a copy of the original minutes, the presumption in favor of the regularity and correctness of the record and of the proceedings of the clerk, has the effect of showing that the original minutes state any and every challenge exercised by and allowed to defendants. Where only four, or at most five, peremptory challenges are thus shown by the record to have been used or allowed, this court will presume that the others, if any, belonging to the party, were not used or allowed. Fleeson v. Savage, 3 Nev. 157. We therefore claim that it is conclusively shown from the record that defendants exercised and were allowed to use five peremptory challenges and no more; that they interposed an additional one to a juror, who afterwards served upon the jury, and that the same was overruled and denied. III. Defendants having been indicted and tried for the crime of robbery, the punishment of which may extend to imprisonment in the State prison for life, were entitled to ten peremptory challenges. Stats. 1864-5, 404; Dullv. The People, 4 Denio, 91. I. Although section 423 of the Criminal Practice Act is only directory to the judge, the defendant must prepare his bill and tender it within the time designated in the statute or such additional time as may have been granted to him by a judge. Beople v. Lee, 14 Cal. 510. II. But the foregoing question is not necessary to be considered here for the reason that there is no bill of exceptions, none having ever been settled or signed by the judge. There is no appeal from the order of the judge refusing to sign the bill, nor anything in the record of which the court can take notice. III. The proceedings on a peremptory challenge 'are oral and no where in the code required to be placed in the minutes of the court. If, therefore, the clerk does put such proceedings in the minutes he does not thereby make them a part of the record. Nor can they be made record in any other way than that pointed out by the code, namely, a bill of exceptions. The case is precisely analagous to that where, in a civil case, the clerk spreads the evidence on his minutes, yet it has frequently been decided it does not make it a part of the judgment roll. Dawley v. Hovious, 23 Oal. 103. Not being a part of the record they will not be reviewed by the court. Sharp v. Duuglmey, 33 Oal. 505. IY. Challenges are of two kinds to an individual trial juror; first, peremptory; second, for cause. Both may be oral, but the challenge for cause' “ must be entered on the minutes of the court, ” (Criminal Pr. Act, Sec. 342,) and thereby becomes a part of the record. Not so the peremptory challenge. No reason for that need be alleged. The mention of the necessity for spreading the challenge for cause on the minutes, and the statement that the peremptory challenge may be oral and is not required by the code to be put on the minutes excludes the idea that it is required to be put in the minutes. Y. How many peremptory challenges a defendant on trial for robbery in this State is entitled to interpose, is a question of law and may in a proper case be determined by the court; but how many the appellant interposed on his trial is a question of fact, of which this court can only learn by a bill of exceptions. VI. The district court is a court of record, and the presumption is that defendant used all the peremptory challenges he was entitled to, if he desired to do so, until he shows from the record affirmatively that he did not and that he was prejudiced thereby.