This is a petition for a writ of mandamus. The petitioner was convicted of the crime of embezzlement in the defendant court in January, 1898. The presiding judge of the court at the time of the trial and conviction was the Honorable W.T. Wallace. The purpose of the petition is to compel the present judge of said court, Honorable Frank H. Dunne, to indorse a certain written instrument, and certify the same, as the oral charge given by the said former judge to the jury at the time of said trial in 1898. The document which the petition seeks to compel the present judge to so indorse is on file among the papers in the case, and on its face purports to be a written statement of the said oral charge; but it is not indorsed by the former judge, and is not in any way authenticated or certified to be correct by said former judge, or by any other person. The defendant in his answer avers that he has no information and belief as to whether the former judge instructed the jury orally, or that the document in question is a statement of said charge, and therefore denies the allegations of the petition on that subject. An alternative writ issued, and upon the hearing, it appearing that there were some disputed questions of fact, the case was referred to a commissioner to take evidence and to make findings as to those questions. He made his report, and thereupon the case was argued and submitted.
In our view of the case, most of the findings are immaterial. However, the commissioner found that the former justice orally instructed the jury on January 11, 1898; that the document in question was not attached to the judgment-roll; that in his bill of exceptions, settled September 6, 1901, petitioner made no reference to the oral charge in question; that although petitioner knew that the document in question was on file without indorsement or certification as early, at least, as October, 1899, he made no request of defendant to indorse the same as the oral charge of the former judge until August, 1902, at which time the clerk of attorney for petitioner did make such request; and that defendant disputes the fact that said document is the charge given by the former judge.
We do not deem it necessary to discuss the points made by defendant, that petitioner is guilty of laches in allowing so long a period of time to expire without making any effort to *Page 110 have the alleged oral charge indorsed or certified, and that the matter should have been presented in his bill of exceptions. This is a procedure in mandamus to compel one judge to indorse a certain document as a correct statement of an oral charge given by another judge more than four years prior to the time when the demand for the indorsement was made, and about which the judge against whom the writ runs has no personal knowledge whatever. Assuming, for the purposes of this case, that the statute requiring a judge to indorse on an instruction the fact whether he gave or refused it is not confined to the judge who acted on the instruction and knew what the fact was, still, in such a case, mandamus can be invoked only to compel the succeeding judge to act, not to compel him to act in a particular way. When an appellant institutes an independent proceeding in this court to be allowed to prove an exception which the trial court had refused to allow, this court examines the evidence brought before it on the subject, makes it own order in the premises, and, if it allows the exception, certifies it as a part of the record. But in the case at bar we are asked by the petition in mandamus to compel the defendant, in his judicial capacity, to violate his conscience by indorsing as true what he does not know to be true. This is beyond the legitimate province of the writ of mandate.
The petition is denied, and this proceeding is dismissed.
Van Dyke, J., Lorigan, J., and Henshaw, J., concurred.