State v. Durston ( 1879 )

Servers, J.

1. crtmiuai. sivosentence: tii0Osuprtíme court. — The record before us contains only the indictment, verdict of the jury, and judgment. The only error com-Pained of is the judgment, which it is said is clearly excesssive. It occurs to us quite forcibly the punishment inflicted may have been excessive; but we cannot interfere because the evidence on which the court below acted is not before us. It is impossible, therefore, to say that the discretion reposed in that court by the statute has been abused.

It is urged that the evidence could not be obtained or certified; but we think this must be a mistake. The statute provides that a short-hand reporter shall be appointed for the “ purpose of recording the'oral testimony of witnesses in criminal cases.” Code, section 181. It must be presumed this was done in the absence of any showing to the contrary. It must be further presumed' that the trial judge would have signed a skeleton bill of exceptions which would have sufficiently contained the evidence if he had been asked at the time judgment was pronounced. The time required to prepare such a bill would have been so short that it undoubtedly would have been given.

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