I concur in affirming the judgment in this case and in the views expressed in the foregoing opinion, except as to the assignment of error based on the alleged fact that the jury was not placed in charge of an officer sworn' according to law. Upon" .that question I have been unable to reconcile the holding of the opinion that the fact the officer retiring with the jury was not sworn in conformity with the statute may be shown to the trial court by affidavits on a motion for a new trial and proved to this court in the same way, with the decision that the failure of the defendant to object on account of such fact at the time the jury retired amounted to consent or waiver of his right. If it is necessary for a defendant to make an objection to the court at the time the jury retires that the law has not been complied with and the officer has not been sworn, the court must rule on the objection and determine the fact whether the officer has been sworn. The statute is plain and peremptory, and the ruling on the objection must depend solely upon the fact whether the oath has been administered or not. That question of fact must be decided upon what is before the court at the time, and not from affidavits filed after the ruling on a motion for a new trial. If the fact that the officer was not sworn could be proved by affidavits at all, it must be proved then or the court could not be held in error in overruling the objection. If the objection is properly overruled, it seems manifest that the ruling could not be ground for a new trial, or become erroneous on account of affidavits subsequently presented to the court. I do not see' how the two propositions can be harmonized.
The claim of plaintiff in error is, that he has proved to the trial court and to this court, by affidavits filed with his motion for a new trial, that an officer was not sworn to attend the jury upon their retirement, and that therefore the trial court erred in not granting such new trial. The judge of the criminal court, in making up and settling the bill of exceptions, did not find or recite that the officer was not sworn, and my concurrence in not sustaining the assignment, based on that fact, is on the ground that the fact cannot be proved by affidavits and made a part of the record in that way. It was the duty of the court to send a sworn officer with the jury, (McKinney v. People, 2 Gilm. 540,) and if the duty was not performed it was the error of the court. It was as much the duty of the court as it was to have the defendant arraigned, the jury and witnesses sworn and the proceedings conducted according to law. The court might administer the oath or direct the clerk to do it, and necessarily whether it was done was within the knowledge of the court. The law presumes, until the contrary appears, that the court performed the duty and that the officer was sworn according to the statute. (McKinney v. People, supra; Pate v. People, 3 Gilm. 644; Holmes v. People, 5 id. 478; McIntyre v. People, 38 Ill. 514.) The alleged fact that the officer was not sworn can only be shown by a recital in the bill of exceptions, and if it does not appear in that way it cannot be considered. The office and purpose of a bill of exceptions is to recite and make a part of the record the events that transpire in the course of a trial. It must recite the facts out of which the question of law arises, and the ultimate decision what those facts are rests with the trial judge. “The law makes him, and properly so, the judge of the propriety and accuracy of the act he is called on to solemnly verify the truth of, so that it shall become a part of the record in the cause, and it is not for other parties to determine the truth.” (People v. Pearson, 2 Scam. 189.) In Eastman v. People, 93 Ill. 112, the bill of exceptions failed to show an exception to a ruling of the court, and counsel claimed that the exception was in fact taken and a bill of exceptions was presented showing the fact but the judge substituted another bill not showing the fact. The court said (p. 113): “Assuming- this- statement of counsel to be true, is it not manifest that to act upon it would be a departure from all precedent and a palpable violation of duty on the part of the court? Gan there be anything more thoroughly settled and universally understood, than that a court of review can only look at the record before it, and that in determining the rights of the parties thereto, must accept the record as an absolute verity? Even if the members of the court personally know a fact important to the rights of the parties, which by innocent mistake or fraudulent design has been omitted in making up the bill of exceptions, they would be powerless to act upon such knowledge. We must therefore conclusively presume in this as in all other cases, that the bill of exceptions speaks the facts as they really exist.” In this case there is an omission of the alleged fact on which an assignment of error is based. The judge who settled the bill of exceptions heard affidavits, as he might do, but did not find or recite the fact. A judge may examine notes and minutes, re-call witnesses to be examined by him alone, and take all available means to determine the facts, but the question whether the bill fully and fairly presents the facts occurring in his presence is confided to his judgment and his decision is final. 3 Ency. of Pl. & Pr. 446, 447; Elliott’s Appellate Procedure, sec. 798; Emerson v. Clark, 2 Scam. 489; Hake v. Strudel, 121 PI.. 321; People v. Anthony, 129 id. 218.
It is because of this established rule that, while mandamus will lie to compel a judge to settle a bill of exceptions, no court will direct what he shall put in it. He can only be required to sign such a bill as he believes recites the facts of the- case,- (Ex parte Bradstreet, 4 Pet. 102,) and affidavits of alleged facts are unavailing for that purpose. (2 Greene, 394.) The Supreme Court of Wisconsin refused to compel a judge to insert in a bill of exceptions an instruction which it was claimed he gave to the jury which he denied having given, although the instructions and exceptions thereto were reduced to writing by counsel at the trial and signed by the judge. This was on the ground that a judge can only be compelled to state the facts occurring at the trial according to his recollection. (State v. Noggle, 13 Wis. 380.) Facts cannot even be brought before a court of review by stipulation of the parties, where not recited in the bill of exceptions.
Following the rule that the judge must recite in the bill of exceptions what occurs on the trial, the court held in Mayes v. People, 106 Ill. 306, that the facts could not be shown by affidavit on a motion for a new trial. The attempt was to show in that way unwarranted statements by the State’s attorney in his argument to the jury. The judge did not certify the fact of the statements being made. The court said, if the fact occurred it was to be presumed the judge knew it; that the affidavit of a defendant could not be made to override the recitals of the bill of exceptions as to what occurred upon the trial, and that the judge may have disregarded the affidavit because he knew it to be untrue. In this case the judge knew whether he administered the oath or caused it to be done, and did not need affidavits to bring it to his attention. He might hear affidavits in settling the bill of exceptions to aid his recollection and assist him in deciding as to the fact, but if they were unavailing to convince him they raise no question here. The failure of the judge to find and recite the fact is in effect a finding that it did not exist, and he may have disregarded the affidavits because he knew them to be untrue. The Mayes case was followed and the same ruling made in Scott v. People, 141 Ill. 195, and Peyton v. Village of Morgan Park, 172 id. 102.
A party may be entitled,to a new trial, not on account of any error of the court, but by reason of misconduct of a party or an officer or the jury out of court affecting the result of the trial, and in passing on a motion for a new trial on such a ground the court must necessarily hear evidence as to the fact and decide from such evidence. A party may allege an exception to the ruling in such a case and have it reviewed, but has no such right as to facts within the knowledge of the court.
Mr. Chief Justice Boggs concurs in the separate opinion of Mr. Justice Cartwright.
Subsequently, on consideration of- the motion of the plaintiff in error for leave to suggest a diminution of the record, which motion was considered and decided in connection with the petition for rehearing filed herein, the following additional opinion was announced orally by Mr. Justice Cartwright:
The judgment of this court has heretofore been entered in this cause affirming the judgment of the criminal court of Cook county against plaintiff in error, and he has filed a petition for a rehearing and a motion for leave to suggest a diminution of the record and to file an additional and amended bill of exceptions. The motion is accompanied by the additional and amended bill which it is proposed to file, which recites that plaintiff in error made application to the judge who tried the cause in the criminal court, and said judge, upon considering certain affidavits and a stenographer’s notes of the testimony of one Henry C. McFall, — all which affidavits and testimony were heard and considered on the motion for a new trial and were a part of the bill of exceptions and record in this court before this amendment, — came to the conclusion that no oath was administered after February 21, 1900, to the bailiffs who had charge of the jury, and therefore said judge certifies to said fact.
In passing upon this motion it is not necessary to decide whether we might, in the exercise of a sound discretion and in furtherance of the ends of justice, permit a proper amendment of a record after the decision of a cause and re-open such cause for further consideration upon the new record. In cases where a bill of exceptions may be amended after the term at which the judgment was rendered and after the bill has been settled and signed, for the purpose of supplying an omission or correcting a mistake, the amendment must be based upon some official or quasi official note or memorandum or memorial paper remaining in the files of the case or upon the record of the court. A fact proposed to be made a part of the record by amendment of a bill of exceptions cannot rest in the recollection of the judge nor of any other person. It cannot be based upon ex parte affidavits or testimony after the event, and the only basis of the proposed amendment is of that kind. The affidavits and the testimony of McFall were presented to the trial court on the motion for a new trial, and purported to give the recollection of persons as to what occurred at the trial. They were not made or kept as a record of the event at-the time it is alleged to have occurred, and all that is proposed is, that the trial judge, upon their being presented to him again, shall certify his opinion or conclusion that the bailiffs were not sworn because those persons made affidavits or testified after the trial that they were not sworn. That cannot be done by way of amendment of the record.
A further and all-sufficient reason for refusing to grant the motion is, that the amendment would be of no benefit to the plaintiff in error. If we should permit- the ádditional and amended bill of exceptions to be filed and not grant the petition for a rehearing it would not him, because the judgment of affirmance would stand against him in full force, as before. That judgment was not based upon the non-existence of the fact now sought to be introduced into the record. The opinion of the court in pursuance of which the judgment was affirmed conceded that the bailiffs were not sworn, as required by the statute, and decided the case upon the ground that plaintiff in error, by failing to object at the time, waived his right to assign error for a failure to swear them. The members of the court who concurred in that opinion are not of any different opinion now upon that question, and consequently a rehearing could not be granted if the. amended bill of exceptions should be filed and the fact be brought into the record.
The motion for leave to suggest a diminution of the record and to file the additional and amended bill of is denied, and the petition for rehearing is also denied.
Rehearing denied.