I dissent. Aside from the special importance of this appeal to the defendant, the case is of general importance on account of the question of practice which it involves — a question destined apparently never to reach a definite settlement in this court. There is no doubt that a defendant in a criminal case who has moved for a new trial on the ground that the verdict is contrary to the evidence is *Page 73 entitled to a reversal of the order denying his motion when it appears by the record on appeal that there was a total failure of proof as to any material allegation of the indictment or information. But there has long been a question as to the method by which the record in such case can be made to show the failure of proof. In civil cases a party moving for a new trial on the ground that the verdict or other decision is contrary to the evidence (except when he moves on the minutes of the court) must prepare a statement or bill of exceptions as a foundation for the motion, and must specify therein the particular findings, or, in case of a general verdict, the particular issues, as to which he claims that the decision is contrary to the evidence. If he neglects to make such specification, his motion as to this ground fails; but if he makes a sufficient specification, it devolves upon the party resisting the motion to see to it that the proposed statement or bill of exceptions is, if necessary, so amended before settlement as fairly to show all the evidence in support of the finding or verdict. And on appeal the presumption is, that there was no evidence given at the trial upon the controverted issues, except that which is contained in the settled statement or bill of exceptions. The propriety, convenience, and economy of this rule in civil cases is universally recognized, and there is no reason why the same rule should not obtain in criminal cases so far as it can be made applicable in view of the different order of procedure prescribed in moving for a new trial. In civil cases the motion is made after judgment; in criminal cases it must be made before judgment and without any settled statement or bill of exceptions, so that the only specification of particular allegations respecting which it is claimed that the proof has failed are such as counsel may make in the course of his oral argument. It would have been a wise provision if the statute had required the defendant in proposing a bill of exceptions to the order denying his motion to specify the particular allegation or allegations of the indictment or information which he claimed to be unsupported by the evidence; for then the district attorney would have had the same guide in proposing amendments to the bill that the resisting party has in civil cases, and the justice and propriety of applying to the settled bill the same presumption that attaches in civil cases would have been unquestioned. But, *Page 74 unfortunately, no such provision has ever been made, and since the verdict may be attacked in this court upon any ground the defendant may select, it devolves upon the district attorney, according to one line of decisions, to see that the proposed bill is, if necessary, so amended as to contain some evidence, if evidence there was, sufficient to support the verdict upon every material issue. These decisions, it will be seen, bring the practice into close analogy with the practice in civil cases, and are founded upon the doctrine that when the motion for a new trial is based upon an alleged failure of the evidence, the presumption here is, and ought to be, that if the settled bill of exceptions contains no evidence tending to prove a material allegation of the indictment, then that there was no such evidence. The principle of these decisions is the same that in the law of evidence imposes the burden of proof upon the party holding the affirmative of the issue. Another line of decisions reverses this principle in its application to this particular matter of procedure, and imposes upon the defendant the task of demonstrating by the record the negative proposition that there was no evidence to support one or more of the material allegations of the indictment or information, and is based upon the doctrine that in this court the presumption is, and ought to be, that there was abundant evidence given at the trial to support the verdict, although none is contained in the record, unless it is affirmatively shown by the bill of exceptions that it contains all the evidence.
It may be conceded that the language of the statute affords as much support to either of these conflicting lines of decision as it does to the other, and it may also be true that either rule, if consistently maintained, would protect the rights of defendants. But when counsel, in reliance upon recent and deliberate decisions of the court reviewing and commenting upon previous and conflicting decisions, has brought himself within the protection of the rule first above stated, we are not justified in denying his appeal upon the ground that the bill of exceptions does not respond to the test which we have discarded.
It is not, however, on account of the particular injustice which in my opinion this defendant has suffered in consequence of the changed views of the court, that I feel compelled to give full expression to the reasons for my dissent. *Page 75 The more important consideration, as regards the public, is, that in a mere matter of procedure, where a rule once established should be adhered to unless its enforcement is found to involve grave inconvenience, we are by this decision discarding a plain, simple and convenient rule, and substituting in its place one difficult of comprehension, more difficult of application, productive of increased trouble and delay in the disposition of criminal causes, and of increased expense to the counties of the state. For what is the test now prescribed for determining whether there was a failure of evidence as to a material allegation of the charge? "It is not essential," the court say, "that the bill should in terms state that the evidence contained therein was all the evidence given. It is enough to raise the presumption that it does contain all the evidence that the bill on its face fairly purports to state the evidence or its effect." This, then, is the test of sufficiency for future cases. The old rule which required the bill to show expressly that it contained all the evidence — a rule which at least had the merit of simplicity and certainty — is abandoned, and in its place is substituted the requirement that the bill must on its face fairlypurport to state the evidence or its effect. But when will a bill fairly purport to state the evidence or its effect? The criterion proposed is as uncertain as the length of the chancellor's thumb, and if a bill stops short of an explicit statement that it contains all the material evidence, there will be varying opinions, according to the composition of the court, as to what it fairly purports to contain. Some way or other, however, the bill must be such as to induce the presumption that it containsall the evidence, and since counsel generally prefer to leave nothing to chance that can easily be made secure, the practice hereafter will be to put in all the evidence, in order to insure the insertion at the end of the bill of the old formula, "The foregoing was all the material evidence introduced at the trial," or some statement equally explicit. In short, we shall have fallen back into the old rut from which an adherence to the decision in People v. Fisher, 51 Cal. 319, would have extricated us, and we shall have hereafter the same inordinately bulky records that have afflicted the court for so many years, with all their attendant inconvenience to the parties and expense to the counties of the state for copying, printing, etc., *Page 76 and the consequent delay in bringing up the record for review.
And what is the reason to be gathered from the opinion of the court for this abandonment of a plain and simple rule, based upon a reasonable presumption, in favor of a rule so vague and uncertain, and necessarily involving the mischievous consequences which years of experience have taught us are entailed by a practice based upon the opposite presumption?
Partly, it would seem, the present opinion of the court, like the opinion in Department, is based upon the assumption that the bill of exceptions as it appears in the record before us is purely the work of defendant's counsel. It is spoken of as his bill, and its assumed deficiencies — attributed in the Department opinion to an attempt on his part to throw upon the district attorney the labor of putting into the bill the evidence which it was his duty to have set forth in the draft as proposed by him — are now accounted for on the supposition (unwarranted, I think) that it was prepared for the sole purpose of presenting a point which counsel have never made, — the point, that is to say, that a conviction of burglary in the second degree cannot be upheld in view of testimony showing that it was committed between sunset and sunrise.
It ought not to be necessary to call attention to the fact that a settled bill of exceptions is the result of the joint efforts of counsel for defendants, the district attorney, and the trial judge. It may contain no part of the bill as proposed by the defendant, — it may contain more or less than the defendant's draft. It is not what he states, but what the court states, to have been the evidence bearing upon the several exceptions reserved.
But conceding that it may have been the intention of counsel to urge in this court the absurdly untenable proposition with reference to which the court supposes the bill was framed, it still does not follow that it was the only point upon which he was relying for a reversal. On the contrary, the district attorney and the trial judge were plainly informed by the only means known to the law that he was also relying upon the point that the verdict was contrary to the evidence, and if he wholly failed to set out any of the evidence which tended to support the verdict he was clearly within his rights *Page 77 in omitting to do so, according to the very latest decisions of this court bearing upon the point.
In People v. Fisher, 51 Cal. 319, in which the court considered and construed the provisions of the Penal Code relative to the settlement of bills of exceptions, the ground of the decision was thus stated: "The presumption in this court is that there was no evidence introduced in support of a fact in issue, unless the bill of exceptions contains the substance of the evidence introduced to prove the fact, or states that the fact was proven, or that evidence was introduced tending to prove it." And the rule based upon this statement of the presumption attaching to bills of exceptions, was laid down in accordance with its principle, — the principle, that is to say, which in the law of evidence imposes the burden of proof upon the party holding the affirmative of the issue. In conformity to this principle it was declared to be the duty of the district attorney, when the ground, or one of the grounds, of the motion for a new trial was insufficiency of the evidence, to have a statement inserted in the bill of exceptions that the facts as to which there was no controversy were proven, with the substance of the evidence as to the controverted facts, — or sufficient of the evidence to establish them prima facie, which is all that is necessary in a criminal case to prevent a reversal in this court. And the opinion of the court pointed out how easily, and in what little space, a perfect case for the people could be put into the record if the case had in fact been proved. The opinion of the court recognized the fact — familiar to all — that the controversy in regard to the sufficiency of the evidence is usually confined to some one or two facts, — the venue, for instance, — and that as to other facts it is sufficient to state in three words that they were proven, while as to the controverted facts it properly devolves upon the district attorney to have inserted in the bill enough of his evidence to sustain the verdict. It was plain, also, that the practice thus enjoined, if conformed to, would not only shorten the statement of the evidence and lessen the expense of copying and printing, but would lighten the task of the district attorney and the trial judge, as well as the counsel for the defendant. This wise and commendable decision was followed inPeople v. English, 52 Cal. 211, and then it appears to have been forgotten. A new court came in with the *Page 78 new constitution, and People v. Fisher and People v. English, without citation or reference, were silently overruled by a reversion to the old rule as stated in People v. Williams,45 Cal. 25, and quoted in the Department opinion in this case. (SeePeople v. Leong Sing, 77 Cal. 117; People v. Carroll, 80 Cal. 153; People v. Tonielli, 81 Cal. 279.) But when the attention of the present court was again called to the Fisher and English cases, and to the manifest advantages of the rule of practice which they enjoined, we gave them our unequivocal indorsement. (See People v. Buckley, 116 Cal. 146, and People v. Griffith,122 Cal. 214.) An attempt is made in the opinion of the court to distinguish these cases by arguing that the bills of exceptions, as contained in the several records, covered a large number of pages, and fairly purported to contain all the evidence. But this ignores the principle of those decisions. If they had been based upon the doctrine here asserted, that the bill must demonstrate that there was no evidence given at the trial to prove the material allegations of the charge, it would have been necessary for the court to dispose of the contention of the attorney-general that the record did not purport fairly, or otherwise, to contain all the evidence. It will be seen, however, by reference to the several opinions, that they put this argument aside as having no bearing upon a conclusion founded solely upon the doctrine that, when the ground of the motion for a new trial is failure of proof, it is the duty of the district attorney to make the record show that he proved his case, if in truth he did prove it. The difference between the record in this case and the records in the Fisher, English, Buckley and Griffith cases does not therefore constitute a ground of distinction. They were decided upon a principle which had no regard to this supposed difference — a principle utterly inconsistent with the present decision, which affirms a conviction upon a record which admittedly contains no evidence to sustain the material allegations of the charge.
It remains only to notice the point so strongly insisted upon in the Department opinion, and restated in the present opinion of the court, that the defendant cannot be allowed in cases like this to shirk the duty of setting forth in his draft of the proposed bill the substance of the evidence given at the trial, and thereby impose upon the district attorney the burden of *Page 79 preparing a bill for him. This ground of the decision totally ignores what is so clearly shown in the opinion of the court inPeople v. Fisher, 51 Cal. 319, that the task thus imposed upon the district attorney is the lightest possible. There is in fact no course that the defendant could possibly pursue which would impose so little labor on the district attorney and trial judge in a case of this character as to propose a bill of exceptions containing not one word of the evidence given at the trial. It would save them the reading and comparing and correcting of the long and redundant statement to which we are accustomed, — requiring hours of their time and attention, — and impose upon them the comparatively trivial task of drafting an amendment which could easily, in any ordinary case, be compressed into a single page of manuscript in five minutes' time. Take the present case as an illustration, and suppose the defendant's draft of the bill to have been as meager as the settled bill in the record. It could have been read through almost at a glance, and if in truth the charge was proved, as alleged in the information, an amendment in the following words would have made an invulnerable case: George H. Kahn, a witness for the people, testified: On the 13th and 14th of February last I was the proprietor of the store known as 201 Kearny Street, in the city and county of San Francisco, and owned the articles in the show-window. During the night of February 13th-14th that show-window was broken and various articles stolen therefrom (describing them). Joseph Catania, a witness for the people, testified: On the morning of February 14, 1902, I was standing near the show-window of the store at 201 Kearny Street in this city, and at about five o'clock heard the glass crack. A minute or two later I saw this defendant put in a wire, abstract several articles, and hand them to another man. The two then ran away. Compare the labor of the district attorney in preparing this amendment and of the judge in acting upon it with the task that would have been imposed upon them if the course enjoined upon counsel for defendant by the opinion of the court had been pursued, — if, in other words, the substance of the testimony of the twenty witnesses shown by the minutes of the court to have testified at the trial had been fully or substantially set forth in the proposed bill. And compare the size of the record as so *Page 80 amended with what it would have probably been if all the evidence had been brought up. Compare it, for example, with the record in the recently decided case of Docia Nolan, a common instance, in which one hundred and fifteen pages of the printed record are devoted to the cross-examination of a single witness, — a cross-examination full of repetitions, and which for every practical or useful purpose might have been so condensed as to cover five pages at the outside. And it is to be remembered that every unnecessary page allowed to go into a bill of exceptions costs the county a dollar for printing, for no purpose except to cumber the record and delay the hearing. It may be that this defendant was shown to be guilty, and that a reversal of the judgment on this appeal would have enabled him to escape deserved punishment, but an affirmance of the judgment in his case is dearly purchased at the cost of unsettling a rule of practice which experience has demonstrated to be as useful and convenient and economical as it is simple and definite.
Henshaw, J., and Lorigan, J., concurred in the dissenting opinion.
SUPPLEMENTAL OPINION. (Filed October 20, 1904.)