State v. Reyes
| Decision Date | 05 December 1956 |
| Citation | 303 P.2d 519,209 Or. 595 |
| Parties | The STATE of Oregon, Respondent, v. Martin B. REYES, Appellant. |
| Court | Oregon Supreme Court |
Sidney B. Lewis, Jr., Dist. Atty., and James W. Walton, Deputy Dist. Atty., Corvallis, for the motions.
Mix & Fenner, Corvallis, contra.
The case is before the court on several motions of the respondent, State of Oregon, to strike from the record the transcript of testimony, transcripts of certain affidavits, and of a motion for a new trial, and two envelopes containing exhibits. The motions are based on two grounds: First, that the documents and exhibits referred to have not been made a part of the bill of exceptions, and, second, that the appellant (defendant in the court below) failed to comply with a rule of the circuit court requiring service of a proposed bill of exceptions on the opposing party.
On August 22, 1956, there was filed in this court a document entitled 'Defendant's Bill of Exceptions.' On the same day there were filed here two volumes of testimony authenticated by the official reporter. On the cover of the bill of exceptions is stamped the receipt of the county clerk of Benton County reading: The bill of exceptions consists of a statement of 22 exceptions taken by the defendant to rulings of the court, some prior to trial, most of them upon the trial. It contains a single reference to the transcript of testimony. Exception No. 8, relating to testimony received over the appellant's objections, recites: 'This testimony and evidence is too extensive to be set forth here in detail, but is contained throughout the transcript of testimony.' The certificate of the judge reads: The date of allowance does not appear. Attached to the bill of exceptions is a proof of service by mailing of 'the foregoing Bill of Exceptions' on the district attorney for Benton County on August 7, 1956.
On August 22, 1956, there was also filed in this court a document entitled 'Short Transcript,' which, along with the matters required by ORS 137.190 and 138.180, contains copies of a number of affidavits in support of a motion for change of venue, of an affidavit in support of a motion for inspection of a transcript of a statement made to officers by the appellant, of two affidavits in support of a motion for a bill of particulars filed by the appellant, and of a motion for a new trial. In the body of the bill of exceptions it is recited that the affidavits referred to are 'set forth in the transcript filed herewith.' There is a similar recital as to the motion for a new trial.
There also came to this court the two envelopes of exhibits above referred to. With the exception of State's Exhibit DD no mention of the exhibits is found in the bill of exceptions. Exception 17 sets forth the objection to the reception in evidence of this exhibit made on the trial by counsel for appellant.
It is a basic rule of our appellate procedure that it is only through the medium of a bill of exceptions that evidence in a law action can be brought into the record for consideration by this court. Tellkamp v. McIlvaine, 184 Or. 474, 481, 199 P.2d 246; State v. Pulver, 159 Or. 296, 297, 79 P.2d 990, and cases there cited. This rule applies as well to affidavits in support of motions for a new trial, change of venue, continuance, and the like. Harper v. Wilson, 185 Or. 23, 26, 200 P.2d 600; State v. Garner, 166 Or. 1, 5, 108 P.2d 274; State v. De Grace, 144 Or. 159, 165, 22 P.2d 896, 90 A.L.R. 232; State v. McPherson, 70 Or. 371, 373, 141 P. 1018; State v. Finch, 54 Or. 482, 487, 103 P. 505; State v. Kline, 50 Or. 426, 430, 93 P. 237. And, while the bill of exceptions may consist of a 'transcript of the whole testimony and all of the proceedings had at the trial, including the exhibits offered and received or rejected', ORS 19.100(2), these matters will not constitute a bill of exceptions, nor any part thereof, unless they are duly authenticated by the trial judge. ORS 19.100(3). Boice v. Boice, 196 Or. 346, 248 P.2d 1069; Tellkamp v. McIlvaine, supra, 184 Or. at page 479, 199 P.2d at page 248; Hall v. Pettibone, 182 Or. 334, 339, 187 P.2d 166; Wallowa Law, Land & Abstract Co. v. McGaffee, 160 Or. 298, 84 P.2d 1116; State v. Chee Gong, 17 Or. 635, 21 P. 882.
In this case the circuit judge has not by his certificate identified or made a part of the bill of exceptions either the two volumes constituting the transcript of testimony or the exhibits, with the possible exception of State's Exhibit DD. Under wellsettled rules these matters are not part of the record and are not open for this court's consideration.
This is the first time in our experience and observation that an attempt has been made to incorporate affidavits in the bill of exceptions by including copies of them in the short transcript and referring to them in the bill of exceptions in the manner above stated. The affidavits should be set forth in the bill of exceptions itself. The statute says: 'The rulings excepted to shall be stated, with as much evidence, or other matter, as is necessary to explain them, but no more'. ORS 19.100(2). There is no authority for including affidavits such as we are here concerned with in the short transcript, though it may be that by a liberal interpretation of the statute governing bills of exceptions we could hold that this unorthodox procedure is effective to accomplish what seems to have been the purpose of counsel and the court. But, for reasons to be presently stated, it is unnecessary to decide that question.
Counsel for the appellant have suggested to the court the propriety of sending the case back to the circuit court for correction of the circuit judge's certificate. There is no doubt of this court's power to take that course, or of the power of the circuit judge in a proper case to amend the certificate so that the bill of exceptions will conform to the facts. State ex rel. United Rys. Co. v. Ekwall, 135 Or. 439, 443, 296 P. 57, and cases there cited. In United Brokers' Co. v. Southern Pacific Co., 86 Or. 607, 616, 169 P. 114, this court appears to have itself allowed an amendment of the certificate to the bill of exceptions. If the opinion in the case means what it says, then this court erroneously exercised an authority reserved exclusively to a judge of the circuit court. ORS 19.100(3, 4).
The suggested procedure would avail the appellant nothing, however, unless the trial judge were able to find that a bill of exceptions, which included the matters here in question, was tendered by presenting it to the clerk of the circuit court within 60 days...
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