"Killits, Judge:
"The Court finds itself unable to accept the revision of a proffered Bill of Exceptions in this case, filed only for the Court's consideration, January 25, last. This document of 3,073 pages, in our judgment, does not, by a very large measure, meet the requirements for condensation which are carried in Rule 8 of the Supreme Court, a rule clearly governing the trial court. We feel that to certify it as a Bill of Exceptions would plainly violate the mandate of that rule definitely expressed in the first paragraph thereof. By the Court's grace Appellants have now had seven months — June 23, 1931 to January 25, 1932 — in which to perform the duty upon them enjoined by the rule in question, — more than ample time to satisfactorily accomplish it. Inasmuch as the proposed Revised Bill, under our order on January 9, was to be first subjected to our scrutiny to determine whether it complied with the rule which we found, January 9, upon the motion of the District Attorney, was not the case with the first draft upon which appellants had spent over six months, we do not feel justified in thrusting it upon the attention of counsel for appellee to perform the duty which was to be accomplished by appellants.
"The Law Governing the Trial Court.
"A brief resume of the law is given because we are impressed with the feeling that a primary and inescapable responsibility rests upon this court to see that there is a substantial compliance by appellants with Rule 8 of the Supreme Court (28 USCA § 354), which is identical with Rule 10 of the Circuit Court of Appeals save that the former opens with this paragraph:
"`The Judges of the District Courts in allowing Bills of Exception shall give effect to the following rules.' Rule 8 of the Supreme Court, as well as Equity Rules (28 USCA § 723), was promulgated under the Act of Feb. 13, 1911 (36 Stat. 901 28 USCA §§ 865, 866) which applies `to every kind of action or suit, where review is sought in a Circuit Court of Appeals.' Barber Asphalt Co. v. Standard Co., 275 U. S. 381, 48 S. Ct. 183, 72 L. Ed. 318. There is no essential distinction as to effect, between Equity and Law Rules regarding Bills of Exception, the latter carrying the same provisions expressed in a more general way. See Caldwell v. U. S. (C. C. A.) 36 F.(2d) 738, 742, certiorari denied 281 U. S. 725, 50 S. Ct. 239, 240, 74 L. Ed. 1143.
"The Supreme Court and several if not all of the Circuit Courts of Appeal are becoming increasingly impatient with trial court neglect to require compliance with the letter and spirit of the rule, Patterson v. Mobile Gas. Co., 271 U. S. 131, 132, 46 S. Ct. 445, 70 L. Ed. 870. This decision cited with approval Newton v. Consolidated Gas Co., 258 U. S. 165, 174, 42 S. Ct. 264, 66 L. Ed. 538, wherein it was said:
"`These rules were intended to protect the courts against useless, burdensome records and litigants from unnecessary costs and delay. Counsel ought to comply with them, and trial courts should enforce performance of this plain duty.'
"In Krauss Bros. Co. v. Mellon, 276 U. S. 386, 391, 48 S. Ct. 358, 72 L. Ed. 620, the Supreme Court said that, in setting out the trial record, `regard should be had to the requirements of paragraph 2, of Rule 7 now rule 8 prescribed by this court.'
"In Barber Asphalt Co. v. Standard Co., 275 U. S. 384, 48 S. Ct. 183, 72 L. Ed. 318, it was held that a disregard of the provisions in question is not an error which may be overlooked under USCA, tit. 28, § 391 (Jud. Code § 269) as: `it makes the case difficult of presentation by counsel, and materially augments the task of examination and decision by the court.'
"Although not offered in support of this doctrine a supporting reason exists in the fact that, in the Federal practice, appeal is not a right, but a legislative grace to be enjoyed when a reasonable compliance with conditions precedent is shown.
"For the reason that in the seventh circuit the practice, tacitly condoned by that Circuit Court of Appeals, had been to neglect the rules in question, reversal was declared in 275 U. S. 372, 48 S. Ct. 183, 72 L. Ed. 318, solely because the appellate court had suddenly changed its attitude and had stricken an offending bill, the Supreme Court saying (page 386 of 275 U. S., 48 S. Ct. 183) that that was `a very severe penalty to impose for action which had the court's implied sanction.' However the Supreme Court's aggravation over the practice was shown by penalizing the appellant in the sum of $5,000 for the benefit of the appellee (page 386 of 275 U. S., 48 S. Ct. 183).
"In the case here we are advised by their counsel that each of the seven appellants will attempt the benefits of the poverty statute to avoid the expense of printing the record, wherefore the court of appeals will be confronted with the inconvenience of a large and complicated manuscript record, unless the government is obliged to incur an irrecoverable expense for printing which will certainly amount to thousands of dollars.
"We are also advised that the District Attorney is ready to consent to the record going up as now prepared, but, because of the Supreme Court's view of the importance of observance of the rule, as shown by the citations given above, and that enforcement is plainly the sole burden of the trial court, it appears that the parties are not competent to waive it. See Rosen v. U. S. C. C. A. 271 F. 651, 652. It is probable that if review is sought in the Supreme Court, upon a record so manifestly in disregard of the rule as this would be, as proposed, neither the offending nor consenting party will have an effective standing when asking for the usual writ.
"The Facts.
"This case went to trial March 3, 1931 and closed with judgments June 23. Not all of the time intervening, however, was consumed in trial. There were two interruptions, one lasting practically a week, due to the illness of a juror, another for the major portion of a week due to favor granted the defendants by the court to enable more preparation for defense necessitated by change of counsel for defendant Hursh. The jury was in the taking of testimony during the active weeks excepting one, from Tuesday morning until Friday evening.
"Twenty persons were on trial. There were fifteen convictions, but only seven appeal. Eleven active defense counsel participated.
"Appeal was allowed almost immediately and the appellants enlarged on bond. Four extensions of time to prepare and lodge a Bill of Exceptions, twice without consent of the District Attorney, were granted, expiring with January 5, 1932; wherefore appellants had 196 days within which to comply with the rule in that behalf.
"January 5 appellants completed the lodging of a purported Bill of Exceptions and filed their assignments of error. The lodged document contained 5,041 typewritten pages of large size and carried over seventy per cent of the mass of stenography. The Clerk advises that, following the practice respecting the size of record pages, a typewriting page as used would make 1¼ printed pages.
"Eighty-five assignments of error were carried in 386 typewritten pages of large size. Should this first draft have been certified a complete printed record would have made fourteen volumes of five hundred pages each. Besides the oral testimony there were about 1,200 documentary exhibits, some of great length, the greater number, however, were not carried in the transcript.
"The purported bill carried no index, no notations of transcript paging, and was in such condition that the work of finding any special incident was exceedingly laborious.
"Immediately the District Attorney...
