People v. English

Opinion — Coubt

By the Coubt :

Sec. 1175 of the Penal Code provides that a bill of exceptions shall contain so much of the evidence only as is necessary to present the questions of law on which the exceptions were taken.

It must be presumed, and always will be presumed by this Court, that such exception in a bill is preceded by all the material evidence actually given bearing on the point of the objection. The prosecuting attorney should always be afforded an opportunity to suggest the addition to the bill (as prepared by defendant’s counsel) of such evidence actually given as may have a tendency to remove the effect of a statement of evidence when that effect is to make a ruling apparently erroneous, which —in view of all the evidence bearing on the point—would be correct.

In the case before us it appears from the bill of exceptions that evidence merely hearsay and otherwise clearly inadmissible was admitted over the objection and exception of defendant.

It is suggested by the District Attorney that further evidence was in fact taken at the trial which rendered admissible the evidence which on the face of the bill was inadmissible. But if further evidence was given, it is not before us, and we have no power to add the oral declaration of counsel to the certified bill of exceptions.

Judgment reversed, and cause remanded for a new .trial.