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People v. Beaver

83 Cal. 419 Court Department One. Decision date 1890-03-10 Docket No. 20596 English

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p. 419
[No. 20596.
Department One.
March 10, 1890.]
THE PEOPLE, Respondent, v. OSCAR BEAVER, Appellant.

Headnote

Criminal Law—Judgment Roll — Unauthenticated Instructions — Review on Appeal. — An alleged charge to the jury in a criminal case which is Dot incorporated in any bill of exceptions, nor authenticated in any manner, forms no part of the judgment roll, and cannot be considered by the appellate court.
Id. — Objections to Argument of District Attorney—Action of Court. — Improper statements of the district attorney and his associates, made in their argument, cannot be considered on appeal, if no action of the court below with reference to allowing or forbidding such statements was demanded or requested.
Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.
The facts are stated in the opinion.
Oregon, Sanders, and Charles B. Lambertson, for Appellant.
Attorney-General Johnson, for Respondent.

The defendant was charged with murder, and convicted of manslaughter. From the judgment rendered in the premises, and an order denying a new trial, this appeal is taken.

Objection is made to certain portions of the charge of the court, alleged to have been given of its own motion, at folios 13, 14, 17, and 29 of the transcript.

There is nothing in the record to show that such a charge was either given or refused by the court. It is not shown by any bill of exceptions that any such action was taken by the court.

The alleged charge is not authenticated in any manner by the judge, is no part of the judgment roll, and is not to be considered by the appellate court.. (People v. Rogers, 81 Cal. 209 , 210, and cases cited.)

As to the question raised, that the defendant did not

p. 420
have a fair trial, by reason of the argument made by the district attorney and his associates, it may be said that even if such comments as they made, brought out as they were by the argument of defendant's counsel, were improper, which we do not decide, the defendant cannot be heard here to assign error, for the reason that “the exceptions or objections to statements of counsel for the people in argument, and in the presence of the jury, cannot be considered. No action of the court with reference to allowing or forbidding such statements was demanded or requested/' (People v. Ah Fook, 64 Cal. 383 .)

No prejudicial error appearing, we advise that the judgment and order be affirmed.

Belcher, C. C., and Haynb, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.

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