Keyser

In the action of the People v. Smith, the verdict was rendered on the 23rd day of December, 1877, and a motion for a new trial was made by the defendant on the 18th day of January, 1878, and on that day the motion was denied. On the same day-the Court ordered that forty days be allowed “in which to file bill of exceptions ”; and on or about the 1st day of March, 1878, the Judge of the Court ordered that the time be extended to and including the 18th day of March, 1878, within which to *184 present the hill of exceptions. On the last named day, the draft of a bill of exceptions was, upon notice to the District Attorney, presented to the Judge for settlement; but the Court refused to settle the same, on the ground that it should have been presented within the time allowed by the Penal Code, after the trial.

We are of the opinion that the bill of exceptions ought to have been settled by the Judge. The defendant may appeal from the judgment, without having made a motion for a new trial; and on the appeal he may rely upon any of the grouiids of exception mentioned in sec. 1170 of the Penal Code, and in such case he must have a bill of exceptions, settled as provided in sec. 1171. The…