1. I concur in the opinion of Mr. Justice Crockett upon the points of constitutional law discussed by him. I lately expressed the same views in Ex parte Gutierrez, 45 Cal. 429.
2. But, in my opinion, the judgment of conviction ought ' not to be disturbed, merely because the evidence of the attempted escape of the prisoner’s associates in crime was admitted. It is conceded that if the attempt to escape could be considered to be part of the res gestee—if the criminal enterprise, in which the prisoner had been jointly concerned with others, had not fully ended—then the evidence was correctly admitted. The felonious assault with intent to commit the robbery, the arrest of the guilty parties, and the attempted flight of McGovern all occurred in such rapid succession in point of time, that it might be difficult to designate clearly the precise punctum temporis at which the criminal enterprise could be said to have come to an end. But whatever conclusion is to be reached upon this point, I am of opinion that the evidence objected to and admitted did not affect the substantial rights of Stanley in a legal point of view. The evidence of his guilt was without pretense of contradiction, and was overwhelming in its character. I am satisfied, that without reference to the evidence objected to, the verdict must have been that rendered by the jury. They must, as I conceive, have believed Wallace, the policeman, else they could not have convicted the prisoner at all. Wallace swore that he was an eye-witness of the felonious assault made by the prisoner and his confederates, for which the indictment pro*120ceeds. If the jury believed this evidence, the proof of the attempted flight of McGovern, one of the gang, made in the immediate presence of the prisoner, just after they had both been arrested together, was immaterial, and the error in admitting it, if error it was, was a harmless error. It was one which did not—-could not—injuriously affect a substantial right of the prisoner upon his trial; one for which he is not entitled to a reversal of the judgment at our hands, for under Section 1,258 of the Penal Code mere technical errors below, not affecting substantial rights of the prisoner, are to be disregarded here.
It is conceded by my associates that if all the evidence given at the trial were to be found in the record, it might indeed have appeared that the alleged error in this respect was immaterial; but it is said that in the absence of the entire evidence no presumption that the error was harmless to the prisoner can be indulged. And why, it may be asked, is not all the evidence brought here ? The fault in thalj respect, if it be one, is that of the prisoner. It is he who presents the record, and who assumes the burden of making manifest an error affecting his substantial rights below. All the intendments here, consistent with the records as presented, go to support, not to overthrow, the judgment rendered in the Court below. This rule is familiar in all proceedings in error, be they civil or criminal in their character. We are not to reverse a judgment becaqge possibly, or even probably, error may have occurred below. Nothing is better settled than that a bill of exceptions, whether in a civil or criminal case, is a pleading of the party who relies upon it. It must make a case in his favor affirmatively. If open to the charge of ambiguity, uncertainty, or omission, it must, like any other pleading, be construed most strongly against the party who relies upon it. (People v. Williams, 45 Cal. 25.) If,, indeed, at the trial of the prisoner, the evidence given upon the issue was of such a character as to lend apparent weight and importance to the circumstance of McGovern’s attempted escape from the custody of the officer, the prisoner could and ought to have made it so appear by embodying the whole of the evidence in the record. *121Had lie done so, it is conceded by my brethren that it might have appeared that no injury was done to him by admitting the evidence complained of. The presumption in the judgment of the law is, that it would have so appeared. The prisoner has failed to bring up all the evidence, and I am unable to see upon what process of reasoning he has, by such failure, created an intendment in his own favor, which entitles him, in point of law, to a reversal of the judgment.
I am, therefore, of opinion that the judgment should be affirmed.