law, although now allowed by a statute of this State. But the statute is limited to exceptions taken on the main issue, and does not reach such as are made on the trial of a preliminary or collateral question. The words are, "on the trial of any indictment, exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil cases." A trial of the question of insanity is not a trial of the indictment, but is preliminary to such trial. The statute does not authorize exceptions to be taken on such preliminary trial, and if errors occur, they must be corrected, if at all, at common law, by the court which committed them.1

The bill of exceptions in criminal practice is similar in its nature to the bill of exceptions under the former civil practice, or what is known under the code as exceptions. The only questions which can be raised upon the argument thereof are questions of law raised by the exceptions specifically taken at the trial to the decision of the court, either in admitting or rejecting evidence, or in relation to questions of law arising from facts not denied, in which the party was overruled by the court, and then the party excepting must lay his finger upon the points which had arisen. The bill of exceptions cannot draw the whole matter disclosed upon the trial of a cause again into discussion or examination. The question whether the verdict of the jury is against law and evidence cannot be decided on its argument. It lies only to correct an erroneous decision upon some point of law made on the trial, or some erroneous opinion delivered to the jury in the charge of the court, to which an exception was taken at the time. In preparing a bill of exceptions for review upon the law, all portions of the evidence given upon the trial, not relating to or bearing upon the questions of law sought to be raised upon the argument, should not be included in the proposed bill.2

And the rule of the Supreme Court, in relation to exceptions in civil actions, declares that they shall contain only so much of the evidence as may be necessary to present the questions of law upon which the same were taken at the trial, and it is made the

Freeman v. Peo., 4 Den., 21.

Peo. v. Haynes, 11 Wend., 561; approved 21 Wend., 509-547; Peo. v. Dalton, 15 Id., 581; Peo. v. Stockham, 1 Park., 427; Oldfield v. N. Y. & H. R. R., 4 Kern., 310.

duty of the judge, upon the settlement of the same, to strike out all the evidence and other matters which shall not have been necessarily inserted.1

In preparing the bill and copy for service, the lines should be numbered as in civil actions, so that each copy shall correspond.2 The rule above laid down, that questions of law only are to be examined in the appellate court, must, however, be understood as subject to the provisions of the act of 1855,3 which declares that when a conviction for a capital offence, or for one punishable as a minimum punishment, by imprisonment in a State prison for life, shall be brought before the Supreme Court, and Court of Appeals from the court of general sessions in the city of New York, the appellate court may order a new trial, if it shall be satisfied that the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.4

Upon seeking a review under the above provision of the statute, where there were no exceptions taken at the trial, a case should be made as in civil actions, or if both questions of law and fact were sought to be raised, the bill of exceptions should embody the evidence, or, as it is called in civil actions, a case should be made containing exceptions.

§ 5. TIME IN WHICH TO MAKE THE BILL OF EXCEPTIONS. The time allowed for this purpose in civil actions is within ten days after the trial. And a copy thereof is to be served on the opposite party within the same time. But in criminal actions, the bill must be signed and settled before the adjournment of the court. It is usually the practice for the court, where they are satisfied that the bill of exceptions is intended to be filed in good faith, or it is the intention of the trial judge to sign the certificate staying judgment, to delay the pronouncing of sentence

'Sup. Ct. Rule, 36.

' Id., 34.

' Laws 1855, ch. 337, § 3, p. 613; amended 1858, ch. 330, p. 556.

• Vide Peo. v. McCann, 2 Smith (16 N. Y.), 58; Rogers.v. The Peo., 3 Park., 632; Done v. Peo., 5 Park., 364.

Sup..Ct. Rule 34.

until an opportunity has been afforded to make and settle the bill of exceptions.

But the Supreme Court have said, since, by the Revised Statutes, a defendant in a criminal case is allowed to make a bill of exceptions as in civil cases, and have the exceptions examined upon a writ of error; the practice of suspending judgment to enable the court below, to take the opinion of the Supreme Court, upon questions raised on the trial, ought not to be encouraged.1

§ 6. OF SETTLING THE BILL OF EXCEPTIONS.

2

It has sometimes been the practice in settling bills of exceptions, to follow the rules laid down as applicable to the same subject in civil cases, by proposing amendments thereto; and noticing the same for settlement, although there is no statute requiring a copy of the bill to be served or authorizing amend ments thereto. Those rules are briefly stated below. In other cases, it has sometimes been the practice to present the proposed bill of exceptions to the court for settlement, without serving a copy of the same, or waiting to have any amendments proposed thereto; but in either event, the bill should be settled and signed before the adjournment of the court, for the judges of the court of oyer and terminer have no power to settle and sign a bill of exceptions after a final adjournment of such court. It has sometimes been the practice for the counsel to take the minutes of the trial taken by the presiding judge, and prepare a bill of exceptions upon the spot, by incorporating therein such portions of the testimony as may be material and necessary to properly present the exceptions taken; and sometimes in courts of sessions, it has been the practice for the court, as a matter of courtesy, when it has finished its other business, in case the bill and amendments thereto have not been served, to adjourn until some early day to allow the counsel for the respective sides to prepare a bill and amendments thereto for settlement; and where, after the adjourn ment of a court of oyer and terminer, a bill of exceptions, in a criminal case, which had been tried at such court, was settled by a justice of the Supreme Court who had presided in the trial, and was afterwards signed by such justice, and also by the two justices of the sessions who sat with him in the trial, and was filed

more than ten days after such adjournment, and was afterwards returned as a part of the record on a writ of error to the Supreme court, on a motion made by the district attorney, it was ordered that the bill of exceptions be stricken from the record.1

The following is a synopsis of the practice in civil cases where amendments are proposed to the bill, and the same are settled upon notice:

Within ten days after the service of the copy of the bill of exceptions the party, upon whom the same is served, may propose amendments thereto, and serve a copy on the party serving the bill; who may then, within four days thereafter, serve the opposite party with a notice that the bill of exceptions, with the proposed amendments, will be submitted at a time and place specified in the notice to the court before which the trial was had for settlement. The court is then to correct and settle the bill of exceptions as he shall deem to consist with the truth of the facts. The time for settling the bill must be specified in the notice, and it shall not be less than four nor more than twenty days after the service of such notice. The amendments are proposed by reference to the numbered lines of the bill. When a bill of exceptions is made, and there shall be an omission within the several times above limited of the one party to propose amendments, and of the other to notify an appearance as above stated, they shall respectively be deemed, the former to have agreed to the bill of exceptions as proposed, and the latter to have agreed to the amendments as proposed.3

The parties have the right to be heard by counsel upon the settlement, and the court will correct or amend the bill according to the facts.4

Whenever amendments are proposed, the party proposing the bill shall, before submitting the same for settlement, mark upon the several amendments his proposed allowance or disallowance thereof.5

In a case where the trial judge died after the preparation but, before the settlement of the bill of exceptions, the notice of settlement was directed to be given before any justice of the court,

Birge v. Peo., 5 Park., 9.

' Id., 35.

Sup. Ct. Rule 34.

⚫ Jackson v. Tuttle, 7 Cow., 364; 6 Cow., 569.

Sup. Ct. Rule 36.

and the moving party was directed to furnish that justice with the original minutes on the actual trial, and either side were to be at liberty to present to the judge affidavits in respect to the matters which occurred upon the trial.1

Upon the settlement the judge may insert such facts which transpired on the trial as he conceives to render his charge intelligible, although not insisted upon by either party, and may state his charge in his own words, and may insert opinions expressed by him in the hearing of the jury though not embodied in a formal charge. And the judge has a right to see that his charge is correctly inserted.3

He has, also, the right to strike out such parts of the evidence as are immaterial and unnecessary, to present the questions of law raised by the bill, and it is made the duty of the judge to strike out all the evidence and other matters which shall nɔt have been necessarily inserted; so, also, he may insert such proof as goes to waive the exception, and may, in so doing, insert the defendant's proof, so that the plaintiff might insist upon it as a waiver of the exception.5

§ 7. RE-SETTLEMENT OF THE BILL.

In civil cases, if either party should be dissatisfied with the settlement of the bill, and the amendments as proposed thereto, it is competent for him to apply to the court upon motion for a re-settlement upon affidavits showing the errors committed on the settlement and the facts as they really were. Upon such motion, if successful, the bill of exceptions and amendments are referred back for re-settlement in regard to the alleged errors."

A motion for this purpose, when otherwise admissable, may be made pending the writ from the higher tribunal. It will not be necessary first to remit the record for that purpose."

A motion to correct will not be entertained upon affidavits as to a mistake of the testimony, except in a very clear case.

'Morse v. Evans, 6 How., 445.

• Walworth v. Wood, 7 Wend., 483.

Root v. King, 6 Cow., 569.

5 Wend., 103; Sup. Ct. Rule 36. Vide act of 1855, ante.

7 Cow., 354; 6 Id., 449; 7 S. & Rawle, 218.

• 10 Wend., 254; 5 Id., 132; 7 Id., 471.

Witbeck v. Waine, 8 How., 433.

Jackson v. Miller, 6 Cow., 38.