Opinion
Appeal from superior court, San Francisco.
Application for leave to prove exceptions.
COUNSEL:
George H. Perry, for Appellant.
Attorney-General Johnson, for Respondent.
JUDGES: In Bank. McKinstry, J. Temple, J., Searls, C. J., McFarland, J., Sharpstein, J., Paterson, J., and Thornton, J., concurred.
OPINION
McKINSTRY, Judge
A petition on behalf of defendant was presented to this court on the seventh day of June, 1887, for leave to prove exceptions, which the petitioner alleged the learned judge of the court below had refused to allow. (Pen. Code, sec. 1174.) Notice of the application to prove the exceptions was not served on the judge below, nor was it served on the district attorney. The provision in section 1174 of the Penal Code is like that in section 652 of the Code of Civil Procedure.
In Matter of the Estate of Hawes , 68 Cal. 413, this court was of opinion that notice of the application should be given the judge, and that the petition should set forth the exceptions taken, and the evidence in support thereof. We understand this only requires a general statement of the tendency of the evidence, so that the materiality of the ruling alleged to have been excepted to may appear. The attorney for the adverse party to the action should also be notified of the intended proceeding.
[14 P. 373] On the presentation of the petition of the 7th of June, this court appointed the Hon. W. T. Wallace, superior judge, to take proofs and settle a bill of exceptions in accordance with the facts.
June 13, 1887, a bill of exceptions, duly certified by the judge who tried the cause, was filed in this court.
On the 15th of June, 1887, a supplemental petition was filed by counsel for defendant herein, setting forth the filing of a settled bill on the 13th of June as aforesaid, averring that the bill as settled "does not conform to the truth," and praying that the Hon. W. T. Wallace be directed to proceed to the taking of proofs and settlement of a bill of exceptions. The last petition is clearly insufficient.
The order of the 7th of June, 1887, is set aside and annulled, and the application based on the petition filed in this court on the 15th of June, 1887, is denied without prejudice.