People v. Hart

44 Cal. 598

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,426
• Status: Published

Opinion

By the Court, Niles, J.:

The appeal in this case being from the judgment, and there being no bill of exceptions, the case is presented upon the judgment roll alone. The charge given by the Court, upon its own motion, forms no part of the judgment roll.

By section four hundred and thirty-eight of the Criminal Practice Act, it is provided that “when any written charge has been presented and given, or refused, the question or questions presented in such charge need not bo excepted to, nor embodied in a bill of exceptions, but the written charge itself, with the indorsement showing the action of the Court, shall form part of the record, and any error in the decision of the Court therein may be taken advantage of on appeal in like manner as is presented in a bill of exceptions.”

Section four hundred and sixty-two of the Act prescribes the constituent parts of the record of the action, which must contain, among other things, “ the written charges asked of the Court, if there be any.”

It is evident that both of these provisions refer to the written charges or instructions which either party may present and request to be given, in accordance with sections four hundred and four hundred and one, and not to the charge which the Court may give upon its own motion.

The judgment roll discloses no error.

Judgment affirmed, and the Court below is directed to fix a day for the execution of the sentence.