
    [No. 37.
    In Bank.
    July 8, 1895.]
    In the Matter of the Application of JOHN E. HOWARD, to Prove Exceptions.
    Settlement of Exceptions—Conflicting Evidence.—Upon an original proceeding brought in this court for the purpose of proving an exception, where there is an irreconcilable conflict in the evidence reported by the commissioner to take evidence as to the truth of the allegations of the petition, the action of the trial court in settling the bill of exceptions as it was settled must be sustained.
    Original Proceeding in the supreme court, brought under section 1174 of the Penal Code, to prove an exception in a case appealed from the Superior Court of Tulare County. Wheaton A. Gray, Judge.
    The facts are stated in the opinion of the court.
    
      
      Charles Q. Lamberson, and H. C. Lillie, for Appellant*
    
      Attorney General Fitzgerald, for Respondent.
   Garoutte, J.

This is an original proceeding, brought under section 1174 of the Penal Code, for the purpose of proving an exception. According to the petition the defendant, Howard, was on trial charged with murder, and during the closing argument the assistant district attorney used certain language to the jury which it is claimed was unjustified by the evidence, and seriously objectionable to defendant’s rights, and to which objection was made at the time and an exception noted. This alleged language, objection thereto, and exception were incorporated into defendant’s proposed bill of exceptions to be used upon appeal, and the bill so presented to the judge for settlement. But the judge refused to settle the same as presented, and struck therefrom the purported language of the prosecuting officer, and the exception thereto, upon the ground that no such language was used by the attorney during the argument, and thereupon settled the bill. Upon the filing of the present petition this court ordered a reference to a commissioner to take evidence as to the truth of the allegations of the petition bearing upon the language claimed, to have been used. The commissioner took the evidence, and has reported the same in full to this court without conclusions as to the ultimate fact.

Upon examination of the evidence placed before us there appears to be a square and irreconcilable conflict as to whether or not the language set out in the petition was used by the prosecuting officer in his address to the jury. Under such circumstances the action of the trial court in settling the bill of exceptions as it was settled must 'be sustained.

For the foregoing reasons petitioner’s application is denied.

McFarland, J., Harrison, J., and Henshaw, J., concurred.  