The defendant was convicted of the crime of burglary of the second degree and adjudged to suffer imprisonment in the state prison for three years. He appeals from the judgment and from an order denying his motion for a new trial.
The motion for a new trial was made upon several grounds, one being, "That the verdict is contrary to the evidence." This is the only ground relied on upon this appeal, counsel for defendant stating in his brief that the venue was not shown, the date of offense was not shown, the ownership of the property entered or of the property taken was not proven, the right of the defendant to take the articles was not questioned, and that no wrongful intent was shown.
An examination of the bill of exceptions discloses the fact
that the bill does not purport to state all the evidence. So far as applicable to the questions involved in this appeal, it is as follows, viz.: —
"The opening statement was made by the district attorney, and witnesses were then sworn and examined on behalf of the people, and the people rested.
"Witnesses for the defendant were then sworn and examined and the defendant rested.
"Witnesses were then sworn and examined in rebuttal.
"Whereupon the testimony was closed.
"The testimony given during the trial included the following: —
"Joseph Catania testified as follows: —
"`Q. About what time in the morning was it when you heard this glass crack, you think?
"`A. It was just about exactly ten minutes to five.'
"The witness further testified that not more than two or three minutes after he saw the defendant put a wire through the window, pull out articles and hand them to another man.
"George C. Douglass, the police officer who arrested the defendant, testified that it was about twenty-five minutes past five when Catania ran up to him and told him about the burglary.
"When the testimony was all in the cause was argued and submitted by the respective counsel."
The copy of the minutes of the trial contained in the judgment-roll shows that three witnesses were sworn and examined on behalf of the people, twelve witnesses on behalf of the defendant, and five witnesses for the people, in rebuttal.
It is apparent that there was no attempt to state in the bill of exceptions the evidence given upon the trial, and that the only object of inserting the particular portion set out was to point out some particular error relied on, and claimed to be an error by reason of that particular testimony. A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken (Pen. Code, sec. 1175), and where it ismade to appear affirmatively that only a portion of the material evidence is included, and that there has been no attempt to state anything about the nature of the omitted evidence or its effect, it is clear that the portion inserted is
so inserted for another purpose than that of supporting the claim that the verdict is contrary to the evidence in some other respect than that as to which the inserted evidence is applicable.
It will be observed that the inserted evidence is directed solely to the question of time, the substance thereof being that it was not later than a few minutes after five o'clock A.M. when the burglary was committed. It may well be that, under the authorities, it will be presumed that the inserted evidence was all the evidence introduced on the question as to the time of the commission of the offense, and, therefore, as to whether the burglary was of the first or second degree. The crime being alleged to have been committed on the fourteenth day of February, 1902, this evidence showed a burglary committed between sunset and sunrise, which was a burglary of the first degree, while the verdict was that the defendant was guilty of burglary of the second degree only. The only claim really presented by this bill of exceptions is, that by reason of the fact that all of the evidence given upon the question of time showed that the defendant was guilty of the more serious offense of burglary of the first degree, instead of the lesser offense of burglary of the second degree, of which he was convicted, the verdict was "contrary to law or evidence." It is well settled that a defendant cannot complain where the determination of his case was more favorable to him than the evidence warranted (People v.Muhlner, 115 Cal. 303, and cases there cited), but we can conceive of no other reason for the statement that the evidence given included the portion inserted as to time, than the desire to present on this appeal the question as to whether the evidence as to time was such as to render the verdict contrary to the evidence. We adhere to the rule declared in People v. Muhlner,115 Cal. 303, and other cases, and can therefore see no reason why the fact that the evidence as to time was as stated in the bill of exceptions, renders the verdict contrary to the evidence.
The claim of defendant's counsel now appears to be, that where a defendant has specified as one of the grounds of his motion for a new trial that the verdict is contrary to the evidence, without specifying either in his motion or in his bill of exceptions the particulars wherein the evidence is claimed to be insufficient, this not being necessary in criminal cases, it
will be conclusively presumed on appeal that the bill of exceptions contains the substance of the evidence as to everyfact put in issue by the information or indictment and the pleaof not guilty, unless it be stated that facts concerning which no evidence is inserted were proven, or that evidence was introduced tending to prove them.
The true rule does not, we are satisfied, go to the extent claimed by counsel. Where the trial court denies the motion of a defendant for a new trial, it devolves on him, if he wishes to have the action of the court reviewed on appeal, to present the draft of a bill of exceptions purporting, at least, to contain a fair statement of the evidence material to the determination of the questions desired to be determined on appeal. Although he may have specified in his motion insufficiency of the evidence as one of his grounds for a new trial, there is no law requiring him to further press this ground on appeal after the ruling against him by the trial court, and in the great majority of cases it would be useless to so do, in view of the well-settled rule that the appellate court will not disturb the action of the trial court as to matters concerning which there was simply a conflict of evidence. If, therefore, notwithstanding the statement of that ground in his motion, he should after the denial of his motion present a bill of exceptions containing absolutely no evidence, and the bill of exceptions presented to the appellate court contained no evidence or any reference thereto, except a statement that witnesses were sworn and examined, there would be no presumption that there was in fact no evidence given on the trial. The presumption would rather be, that the defendant had abandoned this particular ground for a new trial, and that all reference to the evidence had therefore been intentionally omitted. The presumptions are all in favor of the correctness of the action of the trial court, and it is not to be presumed that such court has refused to allow the insertion of such evidence as the defendant may have desired, so far as the same is necessary to the determination of any question sought to be presented on the appeal.
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The defendant was convicted of the crime of burglary of the second degree and adjudged to suffer imprisonment in the state prison for three years. He appeals from the judgment and from an order denying his motion for a new trial.
The motion for a new trial was made upon several grounds, one being, "That the verdict is contrary to the evidence." This is the only ground relied on upon this appeal, counsel for defendant stating in his brief that the venue was not shown, the date of offense was not shown, the ownership of the property entered or of the property taken was not proven, the right of the defendant to take the articles was not questioned, and that no wrongful intent was shown.
An examination of the bill of exceptions discloses the fact
that the bill does not purport to state all the evidence. So far as applicable to the questions involved in this appeal, it is as follows, viz.: —
"The opening statement was made by the district attorney, and witnesses were then sworn and examined on behalf of the people, and the people rested.
"Witnesses for the defendant were then sworn and examined and the defendant rested.
"Witnesses were then sworn and examined in rebuttal.
"Whereupon the testimony was closed.
"The testimony given during the trial included the following: —
"Joseph Catania testified as follows: —
"`Q. About what time in the morning was it when you heard this glass crack, you think?
"`A. It was just about exactly ten minutes to five.'
"The witness further testified that not more than two or three minutes after he saw the defendant put a wire through the window, pull out articles and hand them to another man.
"George C. Douglass, the police officer who arrested the defendant, testified that it was about twenty-five minutes past five when Catania ran up to him and told him about the burglary.
"When the testimony was all in the cause was argued and submitted by the respective counsel."
The copy of the minutes of the trial contained in the judgment-roll shows that three witnesses were sworn and examined on behalf of the people, twelve witnesses on behalf of the defendant, and five witnesses for the people, in rebuttal.
It is apparent that there was no attempt to state in the bill of exceptions the evidence given upon the trial, and that the only object of inserting the particular portion set out was to point out some particular error relied on, and claimed to be an error by reason of that particular testimony. A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken (Pen. Code, sec. 1175), and where it ismade to appear affirmatively that only a portion of the material evidence is included, and that there has been no attempt to state anything about the nature of the omitted evidence or its effect, it is clear that the portion inserted is
so inserted for another purpose than that of supporting the claim that the verdict is contrary to the evidence in some other respect than that as to which the inserted evidence is applicable.
It will be observed that the inserted evidence is directed solely to the question of time, the substance thereof being that it was not later than a few minutes after five o'clock A.M. when the burglary was committed. It may well be that, under the authorities, it will be presumed that the inserted evidence was all the evidence introduced on the question as to the time of the commission of the offense, and, therefore, as to whether the burglary was of the first or second degree. The crime being alleged to have been committed on the fourteenth day of February, 1902, this evidence showed a burglary committed between sunset and sunrise, which was a burglary of the first degree, while the verdict was that the defendant was guilty of burglary of the second degree only. The only claim really presented by this bill of exceptions is, that by reason of the fact that all of the evidence given upon the question of time showed that the defendant was guilty of the more serious offense of burglary of the first degree, instead of the lesser offense of burglary of the second degree, of which he was convicted, the verdict was "contrary to law or evidence." It is well settled that a defendant cannot complain where the determination of his case was more favorable to him than the evidence warranted (People v.Muhlner, 115 Cal. 303, and cases there cited), but we can conceive of no other reason for the statement that the evidence given included the portion inserted as to time, than the desire to present on this appeal the question as to whether the evidence as to time was such as to render the verdict contrary to the evidence. We adhere to the rule declared in People v. Muhlner,115 Cal. 303, and other cases, and can therefore see no reason why the fact that the evidence as to time was as stated in the bill of exceptions, renders the verdict contrary to the evidence.
The claim of defendant's counsel now appears to be, that where a defendant has specified as one of the grounds of his motion for a new trial that the verdict is contrary to the evidence, without specifying either in his motion or in his bill of exceptions the particulars wherein the evidence is claimed to be insufficient, this not being necessary in criminal cases, it
will be conclusively presumed on appeal that the bill of exceptions contains the substance of the evidence as to everyfact put in issue by the information or indictment and the pleaof not guilty, unless it be stated that facts concerning which no evidence is inserted were proven, or that evidence was introduced tending to prove them.
The true rule does not, we are satisfied, go to the extent claimed by counsel. Where the trial court denies the motion of a defendant for a new trial, it devolves on him, if he wishes to have the action of the court reviewed on appeal, to present the draft of a bill of exceptions purporting, at least, to contain a fair statement of the evidence material to the determination of the questions desired to be determined on appeal. Although he may have specified in his motion insufficiency of the evidence as one of his grounds for a new trial, there is no law requiring him to further press this ground on appeal after the ruling against him by the trial court, and in the great majority of cases it would be useless to so do, in view of the well-settled rule that the appellate court will not disturb the action of the trial court as to matters concerning which there was simply a conflict of evidence. If, therefore, notwithstanding the statement of that ground in his motion, he should after the denial of his motion present a bill of exceptions containing absolutely no evidence, and the bill of exceptions presented to the appellate court contained no evidence or any reference thereto, except a statement that witnesses were sworn and examined, there would be no presumption that there was in fact no evidence given on the trial. The presumption would rather be, that the defendant had abandoned this particular ground for a new trial, and that all reference to the evidence had therefore been intentionally omitted. The presumptions are all in favor of the correctness of the action of the trial court, and it is not to be presumed that such court has refused to allow the insertion of such evidence as the defendant may have desired, so far as the same is necessary to the determination of any question sought to be presented on the appeal. It would not be incumbent on the district attorney in such a case to propose amendments in order to make the bill show the evidence. It is not for him to prepare a bill of exceptions for the defendant. His duty is confined to proposing such amendments in regard to the matters set forth in the bill as will make the bill show the truth as tothose matters.
And so when the bill proposed by the defendant in termspurports to give the evidence as to only one matter or issue out of many, and is expressly confined to that purpose, as we think it is in the case at bar, there can be no presumption arising from the absence from the bill of evidence on the other issues that there was in fact no evidence thereon. In such a case the presumption is only as to the completeness of the record as to the evidence upon the particular matter to which, by its terms, the bill is limited.
If, on the other hand, the proposed bill can be said to fairly purport to give the substance of the evidence in the case, or to state what the same tended to show, the matter of the insufficiency of the evidence to sustain the verdict is presented, and the district attorney must see that the bill truly presents the actual condition as to the evidence on all the issues, for under the authorities it will be presumed on appeal that the bill of exceptions does contain all the evidence, even though there be no statement therein to the effect that no other evidence was given. The true rule, we are satisfied, goes no further than this. In this state it is not essential that the bill should in terms state that the evidence contained therein was all the evidence given. It is enough to raise the presumption that it does contain all the evidence that the bill on its face fairly purports to state the evidence or its effect. But there can be no good reason for a rule establishing a conclusive presumption to the effect that a bill of exceptions does contain all the evidence in a case simply because insufficiency of evidence was one of the grounds specified in the motion for a new trial, where the bill affirmatively shows that the fact is otherwise, and that it does not contain all the evidence, and the rule invoked by defendant's counsel has never been held to include such a case. All that was said in the three cases principally relied upon by defendant was said with reference to cases very different from this, and the language used therein by this court must be read in connection with the facts of those cases. In People v. Fisher, 51 Cal. 319, it fully appears from the opinion that the bill of exceptions did purport to contain the evidence, for it stated that the several witnesses testified in substance as therein stated. There was nothing in
the bill from which it could be reasonably inferred that there was other evidence. It was in reply to the contention of the attorney-general that, in the absence of an affirmative statement that there was no other evidence, it must be presumed, in accordance with the rule that formerly prevailed in several states, that there was such evidence sufficient to support the verdict, that the opinion of the court was directed, and the language there used cannot be held applicable to a case where the bill affirmatively shows that it does not state all the evidence or the effect thereof.
In People v. Buckley, 116 Cal. 146, the record shows that the bill did purport to give the substance of the testimony of each witness, and the statement of evidence constituted over seventy-five pages of the transcript, ending with the words, "This closed the testimony."
In People v. Griffith, 122 Cal. 214, over fifty pages of the transcript consisted of evidence, and it was stated at the end that "This was all the evidence."
These cases bear no analogy to the case at bar. This is a case where the record shows affirmatively that there was evidence, presumably material, that is not contained in the bill, and in support of the action of the trial court it must further be presumed that such evidence so omitted was sufficient to sustain the verdict of the jury. The mere fact that the evidence as to the time of the commission of the offense was as stated in the bill, which is under our views the only point made by the insertion of the portion of the evidence contained therein, would not warrant the granting of a new trial.
The judgment and order are affirmed.
Shaw, J., McFarland, J., and Van Dyke, J., concurred.
DISSENTING OPINION. (Filed October 20, 1904.)