People v. Lungite — 31 Abb. N. Cas. 419

Majority

p. 419

PEOPLE v. LUNGITE.

N. Y. Court of Genera Sessions;

June, 1894.

Headnote

-Exceptions; in crimitial cases.] Where -one convicted of a crime shows no reasonable excuse for not having presented a bill of exceptions upon the trial, or within five days thereafter, or for not having the time enlarged by consent or by the judge who presided at the trial, as provided by the Code of Criminal Procedure, §§ 456, et seq„ a motion will not be granted after the time has expired, allowing further time to serve exceptions.

Motion by one who had been convicted of the crime, of receiving stolen goods, for an order granting him ten-days from the entry of such order in which to serve his proposed bill of exceptions, and for such further relief as-to the court may seem just.

The opinion fully states the facts.

The defendant was convicted of the crime of criminally receiving stolen property on March

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21, 1894, and was subsequently, and on March 30th following, sentenced to imprisonment in the State Prison for the term of one year and six months.

No motion was made on his behalf after the rendition of the verdict in arrest of judgment or for a new trial, and no bill of exceptions was proposed or settled at the trial, nor has any bill of exceptions been even prepared or served upon the district attorney up to the present time, nor was the court applied to, to extend the time to prepare and serve a bill of exceptions, nor has the time been enlarged to do so by consent of the parties.

The defendant now moves for an order granting him ten days from the entry of said “order” in which to serve his proposed bill of exceptions herein, and such further or other relief as to the court may seem just.

Section 455 of the Code of Criminal Procedure provides that exceptions may be taken by the defendant to a decision of the court upon a matter of law by which his substantial rights are prejudiced, and not otherwise, in any of the following cases :

1. In' disallowing a challenge to the panel of the j'ury-

2. In admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated in the verdict, or in allowing or disallowing such challenge.

3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue.

Section 456 provides by whom the exceptions are to be settled and how filed, and section 457 provides that the bill of exceptions must be settled at the trial unless the court otherwise directs. If no such direction be given, the point of the exceptions must be particularly stated in writing and delivered to the court, and must be immediately corrected or added to until it is made conformable to the truth ; and by section 458 it is directed that if nhe

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bill of exceptions be not settled at the trial, it must be prepared and served within five days thereafter upon the district attorney, who may, within five days, serve upon the defendant or his counsel the amendments thereto. The defendant may then, within five days, serve the district attorney with a notice to appear before the presiding judge of the court at a specified time, whether in or out of court, not less than five nor more than ten days thereafter, to have the bill of exceptions settled, and that, at the time appointed, the judge must settle and sign the bill of exceptions.

By section 460 the time for preparing the bill of exceptions and the amendments thereto, or for settling the same, may be enlarged by consent of the parties or by the presiding judge or by a judge of the Supreme Court, but by no other officer; and section 461 provides that if the bill of exceptions be not served within the time prescribed in section 468, or within the enlarged time therefore, as prescribed in the last section—namely, 460—the exceptions are deemed abandoned.

The defendant has failed to comply with the provisions of any of the sections above cited, and no proper or reasonable excuse has been presented for his not doing so. It seems to me, therefore, that, as the bill of exceptions was not presented on the trial nor within five days thereafter, and the time for preparing it has not been enlarged by consent of the parties, or by the judge who presided at the trial, this motion must now be denied.