Walker v. Superior Court ( 1903 )

I concur in the judgment upon the ground that the provisions of the statute requiring the court to indorse and sign its decision and action upon charges presented to it to be given to the jury, and upon the report of the charge made by the phonographic reporter, when the charge or a portion thereof is given orally, are applicable only to the judge who presides at the trial and charges the jury, and who, therefore, has personal and direct knowledge thereof. No other judge can be compelled to indorse the charge. Lacking such indorsement, it constitutes no part of the record, and the only method remaining by which counsel may have the action of the court in giving or refusing instructions reviewed is by embodying such instructions in a bill of exceptions, to be settled, allowed, and certified by the judge. (People v. January, 77 Cal. 179.) Upon settlement of a bill of exceptions certain rules requiring a hearing on notice to the parties exist, thus giving to each party and to the court an opportunity to prepare a correct statement on appeal and providing ample safeguards against error. There is no provision for a hearing in the case of the certification here sought to be compelled. A successor of the judge delivering the charge would be compelled to make an independent personal inquiry, with no provision requiring notice or hearing. This practice might be open to abuse, and would lead to mistakes. A defendant is not deprived of any legal right by this construction, for he has in all cases full opportunity to bring the charge to this court on appeal by bill of exceptions.

Shaw, J., concurred with Angellotti, J.