*503Denied April, 11, 1922.
On Petition for Rehearing.
(206 Pac. 290.)
Rehearing Denied.
Mr. Walter E. Evans, District Attorney, Mr. W. E. Eallam, Deputy District Attorney, and Mr. E. F. Bernard, Deputy District Attorney, for the petition.
Mr. George F. Vandeveer and Mr. E. M. Esterly, contra.
HARRIS, J.— The plaintiff has petitioned for a rehearing. The judgment was reversed upon the ground that the defendant was tried for two separate crimes upon an indictment charging only one crime. All of the members of the court who concurred in the original opinion still adhere to that opinion, while Mr. Justice Bean adheres to his dissent; and, consequently, nothing more need be said concerning any of the points discussed in the original opinion, for the views of a majority of the court were there expressed at length.
The petitioner discusses only one point not noticed in the original opinion, and hence attention will be given to that one point only. It is contended that the defendant did not except to the ruling of the court denying the motion to require the plaintiff to elect, and, in support of this contention, the- plaintiff directs our attention to page 429 of the bill of exceptions where we read as follows:
*504“Portland, Oregon, Tuesday, March 30, 1920.
“ 9:30 o ’clock a. m.
“Mr. Vandeveer: Your Honor, I wish the record to show at this time we renew our motion to require the state to elect upon which charge they rely.
“The Court: The motion will be denied.”
The recital just quoted was not everlooked when the original opinion was written. The printed brief filed in behalf of the plaintiff exhaustively and learnedly discusses many legal questions, and, indeed, the brief may be appropriately described as a legal treatise on some of the questions discussed. Although much space is given in the printed brief to most of the questions, including the question of duplicity, only a single paragraph is devoted to the contention now under investigation, and yet that single paragraph was amply sufficient to attract attention to the record. Upon examining the record we discovered that the quoted recital did not stand alone, but that upon the contrary the question had been previously presented to the trial court, and that upon each prior occasion an exception was saved to the ruling of the court denying the motion; and so, after having first examined the record, we were then of the opinion just as we are now of the opinion, that the defendant had not waived his right on appeal to review the ruling of the trial court denying the motion to require the plaintiff to elect.
42. Before noticing the record, let us first consider the subject of exceptions. What is an exception? What is its office and function? Is it nothing more than an arbitrarily prescribed ceremonial amounting to a meaningless mummery; or, is it, like most rules of procedure, a rule based, not upon purely arbitrary grounds, but upon substantial reasons and hence designed to accomplish in a logical and under*505standable way a definite purpose? In tbe language of the Code, “an exception is an objection taken at the trial to a decision upon matter of law”: Section 169, Or. L. An exception is a protest against a ruling of the court. It is notice to the court and opposing counsel that the objector does not acquiesce in the ruling. When, for example, in the course of a trial an objection is made to a question asked a witness, and the court rules on the objection, the objector may or he may not be satisfied with the ruling. If the objector is satisfied with the ruling, the court and the opposing attorney are entitled to know it; and so, too, they are entitled to know it, if the objector is not satisfied. If the objector is silent after the court announces its ruling, the presumption is that the objector, after hearing the ruling and the reasons for it, acknowledges the correctness of the ruling and acquiesces in it; and, consequently, in order to prevent the presumption of acquiescence the objector must ordinarily express his nonacquiescence : Section 169, Or. L.; Hayes v. Clifford, 42 Or. 568 (72 Pac. 1); Fornof v. Wilkinsburg Borough, 238 Pa. St. 614 (86 Atl. 494); 3 C. J. 894; 8 Ency. PL & Pr. 157; 2 R. C. L. 92.
No particular form is required for expressing an exception, although the usual form is to say: “I except,” or “I save an exception,” or “exception,” or the like. Since one of the reasons for an exception is to give notice that the objector does not acquiesce in the ruling, any language which gives notice that the objector protests against the ruling and does not acquiesce in it, ought to be sufficient: Hayes v. Clifford, 42 Or. 568 (72 Pac. 1); 2 R. C. L. 94. In passing, it is not out of place to direct attention to cases where it has been held that the nonacquieseence *506of an objector may sufficiently appear even though he does not in express terms say “I except”; as, for example, in Woolsey v. Lasher, 35 App. Div. 108 (54 N. Y. Supp. 737), it was held that although the appellant did not use the words “I except,” he indicated his intention not to acquiesce in the ruling but to review the same, the right to review was not lost merely because the plaintiff failed to use the technical phrase “I except” to the ruling of the court. Another illustration is found in Newton v. City of Worcester, 169 Mass. 516 (48 N. E. 274), where it appeared that it was understood by the court and the parties that the defendant wished to have the construction of a particular statute determined by the supreme judicial court in case the ruling of the presiding judge should be adverse to the contention of the defendant, and it was there held that an exception to the ruling should be allowed even though no statement was made in express terms that an exception was taken. Other precedents in point are the following: Snelling v. Letter, 25 App. Div. 590 (49 N. Y. Supp. 917); Deane v. City of Buffalo, 42 App. Div. 205 (58 N. Y. Supp. 810).
In addition to serving as notice of nonacquiescence, an exception, in many jurisdictions, performs another function, although it is possible that this other function is not now so important in this jurisdiction as it was before the amendment of certain sections of the Code regulating appeals. Stated broadly an appeal in an action at law, as well as an appeal in a criminal action, presents to the Supreme Court nothing but the judgment-roll, or a part of- it. Upon an appeal in a criminal action just as upon an appeal in a civil action the judgment or order appealed from can only be reviewed as to questions of law appearing upon *507the transcript: Sections 556 and 1625, Or. L. Origi-. nally the record submitted to the appellate court was a certified copy of the judgment-roll, and hence the use of the word “transcript” in Sections 556 and 1625 (see Turner v. Hendryx, 86 Or. 590, 600 (167 Pac. 1019, 169 Pac. 109); Section 1621, Or. L.); but latterly, by force of an amendment (Chapter 335, L. 1913, codified as Section 554 — 1), the original pleadings and the original bill of exceptions are required to be sent by the clerk of the-trial court to the clerk of the Supreme Court, and, when delivered to the latter clerk, such original pleadings and original bill of exceptions “shall be a part of the transcript.” Originally the bill of exceptions was presented in a short or skeleton form, except of course in cases where the appeal involved a ruling denying a motion for a directed verdict or denying a motion for a nonsuit, in either of which events a bill of exceptions usually included all of the testimony. However, latterly by force of an amendment,
“the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the trial * * .” Chapter 332, L. 1913, amending Section 171, Or. L., Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 318 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589).
Stated in general terms, it may be said that upon an appeal from a judgment rendered either in a civil or criminal action the judgment-roll is the record which is presented to the appellate court. The Code commands the clerk to prepare a judgment-roll when a civil or criminal action terminates in a judgment. Among the documents to be included in a judgment-roll is a bill of exceptions, if there be one: Sections 208 and 1582, Or. L. Most of the rulings made during the *508course of the trial of a civil or criminal action are such as cannot become a part of the judgment-roll, unless they are incorporated in a bill of exceptions; and, consequently, the only means offered for presenting such rulings to the appellate court is a bill of exceptions. As previously stated, under the original practice which required a bill of exceptions to be in a short or skeleton form the office of an exception was in one respect possibly more important than under the present practice which permits a bill of exceptions in an unabridged form. Under the original practice an exception was necessary to produce a bill of exceptions, and hence such a bill was liberally what the name signifies, a bill of exceptions: Gregg v. Groesbeck, 11 Utah, 310 (40 Pac. 202, 32 L. R. A. 266); Goldberg v. Sisseton Loan & Title Co., 24 S. D. 49 (123 N. W. 266, 140 Am. St. Rep. 775); Jones v. Broadway Roller Rink Co., 136 Wis. 595 (118 N. W. 170, 19 L. R. A. (N. S.) 907); Territory v. Caffrey, 8 Okl. 193 (57 Pac. 204); Goodwin v. Bickford, 20 Okl. 91 (93 Pac. 548, 129 Am. St. Rep. 729). Under the present practice an extension of all the shorthand notes, made by the court reporter and properly authenticated by the trial judge, may be filed as a bill of exceptions, and when so filed is presented as a part of the judgment-roll. The original importance of one of the two functions of an exception was recognized by Section 172, Or. L., where it was and still is provided:
“No exception need be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon matters in writing and on file in the court”;
because in the enumerated cases an exception was not necessary for the reason that such “decision” *509became a part of tbe judgment-roll even though no bill of exceptions was prepared.
In the instant case the bill of exceptions consists “of a transcript of the whole testimony and all of the proceedings had at the trial,” and this bill of exceptions is a part of the “transcript” within the meaning which must now be given to the word “transcript” in Sections 556 and 1625, Or. L.
What can the appellate court review? If the appeal be from a judgment in an action at law, Section 556, Or. L., answers the question by declaring that the Supreme Court can review only “questions of law appearing upon the transcript.” If the appeal be from a judgment in a criminal action, Section 1625, Or. L., gives the same answer by stating that the Supreme Court can review only “questions of law appearing upon the transcript.” This is the only statutory declaration upon the subject; it is the only prohibition imposed by the statute; and if there be any additional prohibitions or restrictions they are only such as are prescribed by judicial decisions. In this jurisdiction, as in most jurisdictions, the general rule established by court decisions is that only such questions of law as are presented upon an objection, an adverse ruling, and an exception will be reviewed upon an appeal: State v. Megorden, 49 Or. 259, 269 (88 Pac. 306, 14 Ann. Cas. 130); Morgan v. Johns, 84 Or. 557 (165 Pac. 369); Bagley Co. v. International Harvester Co., 99 Or. 519 (195 Pac. 348); but this rule, like many rules, has its exceptions. One exception to this general rule, expressly recognized by the Code, is found where the question of law is - one that is involved in a ruling which properly appears in the judgment-roll even though there be no bill of exceptions. In the absence *510of an express statute prohibiting it, courts have at times in the furtherance of justice considered errors of law appearing upon the record, notwithstanding the absence of an exception, although such instances are not of frequent occurrence. The discussion thus far is designed merely to call attention to the office and function of an exception, so that added emphasis may be given to the statement that the rule requiring an exception to a decision of the court is founded upon a reason, and so that it may be made to appear that it is sometimes possible to satisfy the reason of the rule without in express terms saying: “I except.” Eule 12 provides as follows:
“The court reserves the right in furtherance of justice to notice on its own initiative a plain error of law apparent on the face of the record.” 100 Or. 750 (173 Pac. x).
43. It is not necessary, however, in the instant case and therefore we neither decide nor intimate whether this court could, in the absence of an exception written in the record, or would if it could, consider a question of law appearing upon the transcript, because the record presented here plainly shows that the defendant protested against the denial of the motion to require the plaintiff to elect and never at any time impliedly or otherwise acquiesced in the ruling of the court.
The recital appearing on page 429 of the bill of exceptions and upon which the plaintiff relies cannot be understood unless some of the occurrences preceding it are related. The defendant demurred to the indictment on the ground of duplicity. The court overruled the demurrer and we approved that ruling. When the cause was called for trial the defendant moved that the plaintiff be required to return the *511documents seized by tbe police. After the court ruled upon that motion, the attorney for the defendant addressed the court in part as follows:
“Now before the trial of this case starts, your Honor, I want to move for an order requiring the district attorney to elect upon which of the various charges contained in this indictment he will proceed to trial. We have raised the question of duplicity by demurrer, which was overruled and an exception allowed, but it is common practice to present the matter in this way and I feel that our petition should be granted. They have charged here that the defendant became a member of a certain organization. That is a definite act constituting a definite violation of Section 3 of the statute. They have charged again that he did assemble with certain people, not alleging that he was then a member. That is an offense which a man whether he was a member or not could commit. But there is a certain other definite act charged against him constituting another definite violation of the law if proved, they have charged a third one in this indictment as I recall it,— ‘That he did help to organize.’ Now there is a third act, — Help to organize the I. W. W. Which of these things are we here to answer? Now we object to being shot at as in police court with a sawed-off shotgun on the theory that something may hit us. The statute of this state says that a man may be proceeded against on one charge at a time and we want to know what the charge is that we are here to answer and not be compelled to answer all three at once.’-’
After the matter had been argued “at considerable length” the court ruled as follows:
“I don’t think the state is compelled to elect. If the question was raised on demurrer if your position was right the court should have passed on that. The motion to elect will be denied.”
The attorney for the defendant said “an exception”; and the court replied, “an exception is *512allowed.” The trial proceeded until the plaintiff rested its case in chief, and upon reaching that stage of the trial the attorney for the defendant stated to the court:
“There are three charges contained in this indictment, and in event my motion for a directed verdict is denied, I will want to renew my motion and require the state to elect upon which of these it will go to the jury.”
Upon being informed that the argument would consume “the afternoon” the court excused the jury “until to-morrow morning at 9:30.” The matter was argued “at length” by the attorneys. The judge expressed his opinion at some length and concluded with the statement:
“I think that phase of the indictment [help to organize] should be eliminated from the consideration of the jury, but on the two questions of membership and voluntarily assemble with an organization it should go to the jury.”
There was further argument. The court denied the motion for a directed verdict. The attorney for the defendant requested the allowance and the court allowed an exception. Thereupon court adjourned.
In substance the record plainly shows that the attorney for the defendant in effect said to the court:
“We object to the submission of any questions at all to the jury; but if the court decides to submit the case to the jury we insist that only one question, to be selected by the plaintiff, be submitted. ’ ’
44. The whole matter was thrashed out by extended arguments made in the absence of the jury. The court made a ruling which was at once a denial of the motion for a directed verdict and a second denial of the motion to require the plaintiff to elect; and it is *513plain that the defendant protested against that ruling. A protest against a single ruling which denies two motions may be treated as a protest as to each motion: Sotham v. Drovers’ Tel. Co., 239 Mo. 606 (144 S. W. 428); Mugan v. Wheeler, 241 Mo. 376 (145 S. W. 462).
When court convened the following day, the defendant again and for the second time renewed his motion to require the plaintiff to elect, as explained by the recital quoted from page 429 of the bill of exceptions. Although it may be that the motion was renewed for the second time out of an excess of caution, nevertheless it was not necessary to do so, for the defendant had on the previous day made a record sufficient to present the question on appeal. Moreover, the very language attributed to the attorney for the defendant on page 429 of the bill of exceptions carries with it an assumption upon the part of the attorney for the defendant that the court would deny the motion and at the same time the language carries with it the implication of non-acquiescence in the anticipated ruling. The petition for a rehearing is denied. Rehearing Denied.
Burnett, C. J., and McCourt, J., took no part in this decision.