People v. Tetherow

40 Cal. 286

• Court: California Supreme Court
• Decided: October 15, 1870
• Docket: No. 2,444
• Status: Published

Opinion

Rhodes, C. J.,

delivered the opinion of the Court, Wallace, J., Temple, J., and Ceooeett, J., concurring:

The errors assigned upon the instructions cannot be noticed, because the instructions are not brought before us in an authentic form. The record furnishes no evidence that any of the alleged instructions were either given or refused, or even presented to the Court. The action of the Court thereon should have been shown either by an indorsement, as provided for by Section 438 of the Criminal Practice Act, or by a bill of exceptions. (People v. Thompson, 28 Cal. 218; People v. Martin, 32 Cal. 91).

We cannot consider the question whether the evidence sustains the verdict, because the record does not present an authentic statement of the evidence. There is no bill of exceptions in the record. The Act of March 28, 1868, (Stats. 1867-8, p. 426), to provide for the appointment of phonographic reporters in certain counties (among which is So-noma County), provides that “The notes of said reporter shall always be taken as prima facia evidence of the testimony given upon any trial where such notes are taken.” The Act does not provide that the notes shall be written out in long-band writing, nor that they shall be verified in any manner by the reporter or any officer of the Court; but it must be presumed — if this Act has sufficient consistency or substance to bear a presumption — that it was intended that the reporter’s notes should be written out in long-hand writing, and should be authenticated by the affidavit or certificate of the reporter, showing that the report is a full, correct and true statement of all the evidence admitted or offered on the trial of the action. The statement of the evidence in this case is preceded by the words: “Testimony, as reported by W. A. Maxwell, short-hand reporter;” but it is neither signed, certified nor verified, and therefore must be disregarded..

Judgment affirmed.

Sprague, J., expressed» no opinion.

Upon the authority of People v. Tetherow, (No. 244) the judgments in the following cases were affirmed:

People v. Parker, (No. 2,356).

People v. Poole, (No. 2,358).

People v. Poole, (No. 2,359).

People v. Parker, (No. 2366).