Soto

Application for writ of prohibition.

Defendant was convicted of the crime of rape. He moved the court for a new trial, and his motion was denied on the seventh day of February, 1908, and on the same day judgment was rendered and sentence imposed.

Immediately following the pronouncing of sentence, all the parties being present in open court, the defendant made application to the court for twenty days additional time in which to prepare and serve his bill of exceptions. The district attorney made a statement that it would be impossible for the record of the trial to be written up in time for defendant to prepare and serve his bill within the time allowed by law, and upon this statement of the district attorney, and without objection upon his part, the court made its order granting defendant ten, days additional time to prepare his biü.

Defendant’s attorney relied upon the foregoing order and also upon the assurance of the district attorney that the latter would consent to a ten days further extension of time, if necessary, and that he would not insist that the notice required by statute should be given, if defendant should make application for such extension. On February 17th, it…

I concur in the judgment, but cannot assent to all that is said in the foregoing opinion by Hr. Justice Taggart.

Under the provisions of section 1171 of the Penal Code, the defendant should have presented the draft of his bill of exceptions to the judge for settlement within ten days after judgment, or within such extension of time ordered by the trial judge in accordance with the provisions of section 1174 of the Penal Code. The bill was not presented within the time specified in section 1171, supra, nor was any legal order made prior to the expiration of the ten days extending defendant’s time for presentation of his bill. The order made on February 7, 1908, but not entered until Harch 16th following, was a nullity, for the reason that no affidavit showing the necessity for such extension of time was made or filed. (People v. Blis, 3 Cal. App. 162 , [ 84 Pac. 676 ]; People v. Simmons, 7 Cal. App. 559 , [ 95 Pac. 48 ].) The time having expired, the court was without authority to make the order of date February 25, 1908, extending defendant’s time to February 29, 1908, within which to prepare and present his bill of exceptions, unless the court had first made an order relieving…