Opinion
No. 8377.
November 3, 1937.
Appeal from the District Court of the United States for the Southern District of California, Central Division.
Proceedings between the United States of America and Max K. Reiner. From the judgment, Max K. Reiner appeals.
Decree in accordance with opinion.
D. Brandon Bernstein, of Los Angeles, Cal., for appellant.
Ben Harrison, U.S. Atty., and Norman W. Neukom, Asst. U.S. Atty., both of Los Angeles, Cal.
Before WILBUR, DENMAN, and HEALY, Circuit Judges.
This case was argued upon the assumption that a motion for a directed verdict was made and denied, and exception noted, at the conclusion of the evidence. The appellant points to a minute order which is not incorporated in the bill of exceptions to support his claims or error in the denial of such a motion.
The motion if made, and the ruling of the court thereon, and exception, should be incorporated in the bill of exceptions. U.S. v. Payne (C.C.A.) 72 F.2d 593, citing Chicago Great Western Ry. v. Le Valley (C.C.A.) 233 F. 384, 387; Felder v. Reeth (C.C.A.) 62 F.2d 730. In view of our authority under the new rules of the Supreme Court regulating criminal appeals (28 U.S.C.A. following section 723a), we can allow the amendment of the bill of exceptions. Ray v. U.S., 301 U.S. 158, 57 S.Ct. 700, 81 L.Ed. 976. If the parties can stipulate that the bill be amended to show that such a motion was made and refused and exception noted, or whatever the fact may be, such a stipulation may be made and the bill of exceptions will be deemed to be so amended. If the parties cannot agree, the trial judge is hereby authorized and directed to amend the bill of exceptions to conform to the fact with relation to such a motion. The stipulation referred to will be filed within ten days from this date, and, if not so filed, the trial judge is directed within twenty days from this date to make such amendment to the bill of exceptions as will conform to the fact in that regard.