I dissent.
In the main, I agree with the basic concept expressed in the dissenting opinion of Mr. Justice Edmonds, but I would not go so far as to hold that in every case where the death penalty is imposed, the death or disability of the court reporter before the completion and certification of the record would justify the granting of a new trial. Should a case be presented where the reporter had transcribed all of his notes with the exception of routine testimony of character witnesses, or other evidence more or less collateral to the main issue, and no serious objection is made to the accuracy of the portion transcribed, I would be disposed to hold that there had been a substantial compliance with the statutes and rules applicable to the preparation of records in cases of this character. Experience of those who have participated in the trial of cases dictates that absolute perfection in the preparation of phonographic records is not to be expected. Some errors may exist in records prepared by the most capable and efficient reporters. In fact, any reproduction of the human voice dependent upon the skill and accuracy of a shorthand reporter may contain some errors. That is why a provision is made for the settlement and certification of a record by the trial judge in the event objection is made to the accuracy of the record certified to by the reporter. But in a case-’ of this character, where some 1,200 pages of the reporter’s notes had not been transcribed by him or dictated into a dictaphone, and the tran*469scription of such notes is dependent upon the ability of another reporter to read the same, I cannot agree that a record prepared in such a manner can be said to constitute a substantial compliance with the provisions of the statutes and rules applicable to the preparation of records in cases of this character.
I would, therefore, reverse the judgment and grant defendant a new trial in this case.
EDMONDS, J.“When upon any plea a judgment of death is rendered, an appeal is automatically taken by the defendant without any action by him or his counsel” (Pen. Code, § 1239, subd. b), and the defendant is entitled to “the entire record of the action.” (Rules on Appeal, rule 33, subd. c.) In considering such an appeal, the Constitution directs this court to make “an examination of the entire cause, including the evidence.” (Const., art. VI, §4%.) Under the circumstances shown by Chessman, the constitutional requirement cannot be carried out.
The Rules on Appeal allow the record to be prepared in either of two ways. They provide that “The reporter shall prepare an original and 3 clearly legible typewritten copies of the reporter’s transcript . . . and shall append to the original and each copy a certificate that it is correct.” (Rule 35, subd. b.) When “completed, the clerk shall deliver one copy to the defendant or his attorney. ...” Promptly thereafter, the original transcripts shall be delivered to the judge for his approval. After all offered objections have been determined and the corrections, if any, made the judge shall certify that fact. (Rule 35.)
When requested by the appellant, an appeal may be presented upon an agreed or settled statement. Rule 36 reads, in part, as follows; “If a transcription of any part of the oral proceedings cannot be obtained for any reason, the appellant, as soon as the impossibility of obtaining a transcript is discovered, may serve and file an application for permission to prepare a settled statement in place thereof. . . . The judge shall decide the application within 5 days, and, if the showing is sufficient, shall make an order permitting the preparation of a settled statement in narrative form of all or such portions of the oral proceedings as . . . [the appellant may deem] material to the determination of the points on appeal. Where necessary for the purposes of accuracy, clarity or convenience, portions of the evidence may be set forth by question and answer, subject to the ap*470proval of the court in settling the statement.” (Rule 7, subd. a.)
The document filed as the reporter’s transcript in this case is an approximate, but neither an exact nor complete, record of the proceedings before the trial court. It was prepared by a method which complies with neither rule 35 nor rule 36, but is a hybrid of each. According to the transcript of the proceedings at the time the objections made by Chessman to the document prepared by the substitute reporter were heard and determined, the trial judge allowed certain corrections of it. He then approved the document as the best possible substitute for an exact and correct transcript, and one which approximates the requirements of both rules. As appears from his remarks, he knew that a settled statement under rule 36 could be used only upon the- request of the appellant, and he treated the transcription only “. . .. as the basis of establishing a transcript on appeal.” (Emphasis added.)
The substitute reporter has not certified that the transcript is correct. His statement is that 1,200 of the 1,800 pages “. . . constitute a full, true and correct transcript of said shorthand notes of . . . (the deceased reporter) ... to the best of my ability.” However, the rules cast responsibility for the correctness of the transcript upon the reporter. The only certification specified for the judge is that, following a hearing and determination of all objections made to the transcript, it has been corrected in accordance with such determination. But prior to the judge’s approval, the reporter must certify that the transcript made by him “is correct.” The document prepared by the substitute reporter as the basis for Chessman’s appeal does not bear the certificate required by law and the action of the trial judge is no substitute for that missing prerequisite.
Manifestly the rules require the person who prepares the transcript to have primary knowledge that it is an accurate statement of the evidence presented during the trial, and to so state in writing. Such a certificate cannot be made by one who was not present at the trial and has no personal knowledge of what transpired. The substitute reporter has not stated, and could not certify, that his transcription of the notes taken by the deceased reporter is correct, and no one can vouch for the document as an accurate and complete record of the oral proceedings on the trial.
Problems relating to the proper authentication of the record *471on appeal are not novel. It has long been the rule that when the trial court fails to comply with the statutory provisions requiring authentication of the bill of exceptions or the transcript of the record, such papers may not be considered upon appeal. (Malony v. Adsit, 175 U.S. 281 [20 S.Ct. 115, 44 L.Ed. 163]; Campbell v. Reed, 2 Wall. (69 U.S.) 198 [17 L.Ed. 779].) In those jurisdictions which require a seal for authentication of the record, upon the absence of the seal, courts have refused to hear the appeal. (Wells v. Long, 6 Ark. 252; Cowhick v. Gunn, 2 Scam. (3 Ill.) 417; No. 4 Fidelity Bldg. & Sav. Union v. Byrd, 154 Ind. 47 [55 N.E. 867]; Jones v. Frost, 42 Ind. 543.) In Oxford & C.L.R. Co. v. Union Bank, 153 F. 723 [82 C.C.A. 609], it was held that the congressional act requiring a bill of exceptions to be authenticated by the signature of the trial judge must be strictly complied with, and the mere recital in the record that the judge signed the bill of exceptions is not sufficient.
Nor is the omission of the judge to sign the bill of exceptions supplied by his signature to an order allowing and settling the bill. (Dalton v. Hazelet, 182 F. 561 [105 C.C.A. 99].) A certificate to the effect that the trial judge signed the- bill of exceptions or his indorsement showing presentation of the bill to him cannot cure the omission of the signature on the bill of exceptions. (Cooper v. Maloney, 162 Mo. 684 [63 S.W. 372].)
Following these principles, the courts of this state have repeatedly held that a record which lacks the authentication required by law may not be considered as the basis for an appeal. (People v. Armstrong, 44 Cal. 326; People v. Ferguson, 34 Cal. 309; Salinas v. Riverside Finance Co., 126 Cal.App. 675 [14 P.2d 1025]; People v. Lee, 97 Cal.App. 321 [275 P. 815]; Lewis v. Lapique, 26 Cal.App. 448 [147 P. 221]; People v. Schultz, 14 Cal.App. 106 [111 P. 271].) In People v. Breaker, 20 Cal.App. 205 [127 P. 666], the reporter annexed to the transcript a certificate that it was correct. However, the court declined to consider the record for the reason that it did not include the statutory requirement of certification under oath. The trial judge’s certificate was “held to be a mere nullity, so far as any effect it may have as an authentication of the record on appeal, where . . . the phonographic reporter’s certificate is wanting in one of the most vital of the requisites of a proper or legal authentication.”
Because of the responsibility of the appellant in a civil case to present a properly prepared transcript, usually the *472appeal will be dismissed when the record has been improperly prepared. However, different considerations apply to the appeal of a defendant upon whom the death penalty has been imposed. Most courts passing upon the question of an appellant’s rights have declared that, in the interests of justice, a new trial should be granted a defendant in a criminal case when the record has not been authenticated as required by law. (State v. Bess, 31 La.Ann. 191; State v. McCarver, 113 Mo. 602 [20 S.W. 1058]; State v. Reed, 67 Mo. 36; Elliott v. State, 5 Okla.Crim. 63 [113 P. 213], new trial should be granted in the same manner as the law provides for new trial on the ground of newly discovered evidence; Bailey v. United States, 3 Okla.Crim. 175 [104 P. 917, 25 L.R.A.N.S. 860]; Burden v. State, 70 Tex.Crim. 349 [156 S.W. 1196]; Johnson v. State, 16 Tex.App. 372; Trammell v. State, 1 Tex.App. 121; Richardson v. State, 15 Wyo. 465 [89 P. 1027, 12 Ann.Cas. 1048].) In Tegler v. State, 3 Okla.Crim. 595 [107 P. 949, 139 Am.St.Rep. 976], the trial judge died before he could settle and sign a case-made. A statute authorizing the trial judge’s successor in office to sign the case-made had not become effect tive, and it was held that the defendant was entitled to a new trial.
In this state, there are two statutory grounds requiring a new trial. Not only is the appeal upon a properly authenticated record a matter of inherent right and justice, but section 1239 of the Penal Code directs this court to review the proceedings in which the death penalty has been imposed. Por that purpose “the entire record of the action” must be prepared. But in the present case the transcript, to which the defendant is entitled as a matter of right (Rules on Appeal, rule 33, subd. c) does not comply with the requirements of law as to certification.
The law makes no provision for the hearing of an appeal upon a transcript which is the most nearly correct one obtainable under the circumstances, and no requirement has been laid upon a defendant to show wherein he would be prejudiced upon an appeal by a record which the attorney general only terms “substantially complete.” Article VI, section 4% of the California Constitution provides that no new trial shall be granted “. . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In the cases of People v. Connors, 77 Cal.App. 438 [246 P. 1072], and People v. Adams, 76 Cal.App. 178 [244 P. *473106], the court said that in providing for the affirmance of a judgment unless the errors complained of have resulted in a miscarriage of justice, the people did not intend that this authorization should be used to cover up or excuse every disregard of any of the just rights of a citizen in the trial of a criminal prosecution.
It is pursuant to the constitutional mandate that the court shall examine “the entire cause, including the evidence,” that the Rules on Appeal require an “entire record of the action” to be prepared (Rule 33, subd. c.) In the absence of a complete and correct record, how can this court review all of the evidence ?
It is unreasonable to place upon a defendant sentenced to death the burden of showing wherein omissions and inaccuracies in the record vitally affect his rights. This is particularly true of the evidence in the present case relating to the question of identification. Chessman asserts that portions of the cross-examination of three witnesses who identified him as the robber are not included in the transcript. He also claims that all of the cross-examination of another witness has been omitted. It may be that if the missing testimony were presented upon the appeal, Chessman’s guilt would not be so clearly established as to enable this court to say that such errors as may be relied upon as grounds for reversal did not result in a miscarriage of justice. When the case is a close one, errors which would not otherwise be held prejudicial may justify a new trial. (People v. Ford, 89 Cal.App.2d 467, 471 [200 P.2d 867]; People v. Hale, 82 Cal.App.2d 827, 834 [187 P.2d 121]; People v. Lynch, 60 Cal.App.2d 133, 145 [140 P.2d 418]; People v. Angelopoulos, 30 Cal.App.2d 538, 549 [86 P.2d 873].) However, upon an incomplete record this court will not be in a position to consider the evidence and, with any certainty, deny relief to the appellant under this well established rule.
For these reasons, I would reverse the judgment and remand the cause for a new trial.
Appellant’s petition for a rehearing was denied June 12, 1950. Edmonds, J., and Carter, J., voted for a rehearing.