On Rehearing.
DAWKINS, J.A rehearing was granted, and this cause remanded for the purpose of' determining whether or not additional time had been granted counsel for, defendant to prepare and present bills of exception covering the several points reserved during the trial, before the sentence and granting of the order of appeal; and, if so, that the court might correct the) minutes accordingly. This has been done; that is, testimony has been taken upon the subject, and the trial court, *611considering that the reservation was timely made, corrected its minutes to correspond to these facts..
Counsel for the state contend that this was not legally permissible, but that the bills must have been actually presented and signed before appeal, citing in support thereof the following cases: State v. Romero, 5 La. Ann. 24 ; State v. Artus, 110 La. 442, 34 South. 596 ; State v. Hauser, 112 La. 328, 36 South. 396 ; State v. Ruffin, 117 La. 358, 41 South. 647 ; State v. Griggsby, 117 La. 1048, 42 South. 497 ; State v. Butler, 137 La. 525, 68 South. 859 ; State v. Barrett, 137 La. 535, 68 South. 945, and State v. Casey, 140 La. 143, 72 South. 904.
In the first case, the syllabus reads:
“A bill of exceptions should be presented at the trial, or the point should be then expressly reserved and noted, and after the trial embodied in a bill of exceptions, without unnecessary delay, while the facts are fresh in the memory of both the judge and counsel. A LIU of exceptions to a proceeding during a trial which took place the 27th of June, but which was not presented until the 28th of July following, cannot be considered.” (Our italics.)
No question as to an extension of time by the judge was raised or considered; but the bill was rejected because of the “unnecessary delay” and the intimation thrown out that it would not be practicable for the true facts to be presented after the lapse of a month.
The second case came to this court with the bills of exception unsigned by the judge, and an ex parte motion was filed here some thrée months after the trial, and after the transcript had been lodged here, for an order to the district attorney to inspect and the judge to sign the bills, which it was said had been reserved during the trial. It was also alleged in the motion that the judge had refused to sign the bills until presented to the district attorney, and counsel for the defense had sent them to the clerk of the trial court with request that they be presented to counsel for the state for inspection and then forwarded to the judge for signing. We simply held that we could not sanction such lax methods; that it was counsel’s duty to see that these things were done, and declined to grant said motion at that late date. There was no suggestion that time had been allowed for preparing and presenting the bills after appeal.
In the third ease, while there was no suggestion that time had been allowed before appeal, the bill wás presented and signed nunc pro tunc ten days afterwards. We said, through the organ of the court, that this was “too late,” but, in view of the importance of the question and the fact that the conclusion that we had reached would not result in “setting aside the verdict and reversal of the judgment,”, we would consider the matter, but that “our action in this matter must not ue taken as a precedent.” As we see it, this did not touch the point in this case, i. e., the granting of time before appeal for signing bills.
In State v. Ruffin, there were no bills of exception, the judge having refused to sign them for the reason that they had not been timely presented, which was not disputed. Again, the point at issue here was not considered.
In the Griggsby Case, the bills were in the record duly signed, although they had not been filed by the clerk until October 2, 1906, and the accused had been sentenced and an order of appeal entered on July 24th. Objection was made that the bills had not been presented to counsel for the state, and we said that, while this should be done in all cases, inasmuch as the judge had signed them, we would consider them, which was done. It is true that we also said that the matter should be “regulated by rules of court which should require such presentation without unnecessary delay and before an appeal is taken” ; but again the question in the present ease was not decided.
In State v. Butler, the bill was signed six days after the appeal was entered, and we *613cited State v. Hauser, supra, in support of the proposition that it could not he considered, and, in doing so, said:
“This doctrine seems to be based on the principle that an appeal in a criminal ease, being suspensive in its nature, divests the jurisdiction Of the lower court. * * • The minutes of court do not show that time was granted for the presentation of either 6ill of exception.”
Here, also, the question of the right to allow time for presenting bills after appeal was not before the court, but the concluding portion of the quotation above, which we have italicised, clearly intimates that such might be done.
In the Barrett Case, the appeal was taken on April 15th, and the bills were signed on April 23d and May 5th. We refused to consider them, citing State v. Butler, supra, and-the prior jurisprudence, but again said:
“The record does not show that time was granted for the presentation of any one of the hills of exception.”
In the last case, State v. Casey, the appeal was taken June 5th, and the bills were presented and signed on the 6th, but this court refused to consider them “in the absence of. circumstances which excuse the delay.”
All italics are by the writer.
On the other hand, in the case of State v. Curtis, 138 La. 911, 70 South. 878, we said:
“He [the ■ defendant] brings the case up on four bills of exception, but it is suggested in the brief filed by the State that, under the authority of State v. Butler, 137 La. 525, 68 South. 859, and State v. Barrett, 137 La. 535, 68 South. 945, the appeal should be dismissed, for the reason that the bills were not signed by the judge until after the appeal had been granted. It appears, however, that they were properly reserved, and we find in the transcript two-letters from the trial judge (to defendant’s counsel and the prosecuting officer, respectively) in which the judge states, in effect, that the fault was his, and we do not think that the consequences should be visited on defendant; the action of the judge having been tantamount to the granting of time for the signing of the hills.” (Italics ours.)
It is unquestionably true-that the granting of the appeal divests the trial court of jurisdiction, in so far as the performance of any act requiring the exercise of judicial discretion or judgment is concerned; but as to ministerial duties, which are necessary to have the record show what took place, we think it has the power, within reasonable bounds before granting such appeal, to reserve the right to do whatever is necessary to accomplish that result. The signing of a bill of exception is so much a ministerial duty that, when timely applied for, mandamus will lie to compel its performance. State ex rel. Mullen v. Drew, Judge, 32. La. Ann. 1043 ; State v. Ford, 37 La. Ann. 456 ; State ex rel. Wyly v. Judge, 35 La. Ann. 248. The judge cannot be compelled, of course, to sign a bill reciting facts which, according to his recollection did not happen, but he must, where the bill is reserved and timely presented, at least state what his conception of the matter is. Where time is requested before appeal, the judge is called upon to exercise a sound discretion, and may refuse or grant it within reasonable limits, not to exceed the completion and filing of the transcript within the return day, provided he acts before losing jurisdiction. When this has been done, nothing remains but to execute the order or duty which he has imposed upon himself while the case was still in his hands. If the accused obtains an appeal before the bills are signed, or without being given time within which to present them, the necessary consequence is that he waives or abandons them, and the case comes up on such other matters as may properly appear in the record.
We agree with the lower judge, that the evidence taken under the order remanding the case on rehearing shows that time was granted before appeal within which to prfesent the bills of exception for signing, and that this was done within the limits fixed. Hence they are properly before us for consideration.
*615We have again carefully considered the issues raised by the bills which we found on the former hearing justified the setting aside of the verdict, and can see no reason for changing our views.
The author of this opinion tried very hard, in the recent constitutional convention to have it provided that the trial judge might •discuss and .analyze the testimony for the benefit of the jury in criminal cases, as is done in the federal courts and in some of our sister states; but his efforts were overwhelmingly defeated — the argument being that the influence of the judge’s views upon the minds ■of the jury would be too great. Hence, it is the fixed policy of the' law in this state, made •so expressly by statute, that he cannot let the jury know what his opinion on the facts is; so that, when the district attorney told the jury that he (the judge) had not believed the witnesses of accused in this case when they testified to the same facts in the civil case, the result was that it brought to bear this same influence upon the minds of the jury, in a way that it could not be effaced by telling counsel to stay within the record, or the jury to pay no attention to it.
For the reasons assigned, our former decree is reinstated and made the final judgment of this court.
ST. PAUL, J., concurs in the decree!.