Winters

I dissent. In this case the defendant by his appeal makes the point that the evidence is not sufficient to establish his guilt. To support this contention he presents to the trial judge a bill of exceptions containing all the evidence by question and answer introduced at the trial. To recognize the legality of such a practice is to encourage indolent attorneys, greatly increase the labor of this court, *282 and double the expense entailed upon the various counties of the state in the printing of transcript upon appeal. This-court has repeatedly held that the trial judge is justified in refusing to settle such a bill of exceptions, and has sustained his. action in so refusing. (See cases cited in Cohen v. Wallace, 107 Cal. 133 ). There is no case to the contrary in the reports of this state.

The petitioner, Harry Winters, was convicted of murder in the first degree. He moved for a new trial, and his motion was denied. He gave notice of his appeal from the judgment and from the order denying him a new trial, and presented for settlement a purported bill of exceptions, which the trial judge, respondent herein, refused tó settle, basing his refusal upon the fact that the proposed bill of exceptions was substantially a transcript of the notes of the official stenographer, taken by him upon the trial. This is an application for a writ of mandate to compel a settlement of the bill of exceptions.

In justice to the learned judge of the trial court it should be said that his refusal finds support in declarations in some of the adjudicated cases. (People v. Getty, 49 Cal. 581 ; People v. Sprague, 53 Cal. 422 ; January v. Superior Court, 73 Cal. 537 .) But in its later utterances this court has softened the harsh rule previously laid down, and has expressed other views of the duty of the judge under the circumstances here presented, views which we think are more in consonance with the spirit of the law, and which certainly tend -to secure to a defendant the benefits of an…