
    UNITED STATES v. VICENTE BALBAS.
    San Juan,
    Criminal,
    No. 673.
    Ee Charge of Cotjbt in Bill of Exceptions.
    Bill of Exceptions — Charge of Court.
    The charge of court is that filed, and signed by the judge. The stenographer does not make the charge, and his notes are subject to revision by the court from recollection and evidence as to -vt'hat was actually given to the jury. Exceptions must be taken to that official charge. If a party thinks the charge is different, he must establish such charge by a special proceeding. In the case at bar the court sends up the original paper filed, consisting of the stenographer’s notes, with pen and ink corrections of the judge.
    Opinion filed February 11, 1918.
    • Mr. Miles M. Marlin, District Attorney, for plaintiff.
    
      Mr. H. G. Molina for defendant.
   Hamilton, Judge,

delivered tlie following opinion:

■: There is no question about a party’s getting in the record anything that actually happens before the court, hut there may he :&;'questión-of what the right way is of getting at it. The charge ■of the court, as I understand and as I rule, is what is filed. The official stenographer did not act in this case, hut Mrs. Hutton, the' stenographer of the district attorney. The notes taken by Mrs. Hutton or Mr. Harvey or anybody, even if he is the official stenographer, are not conclusive on the. court. The stenographer does not make the charge. I do not see how notes could he binding, because the court has to certify that so-and-so, and so-and so, was done, not that the stenographer took down so-and-so. That being so, I have to make up my mind from all the evidence before- me, my own memoranda and memory, and what was taken down by the stenographer. There might be two or three stenographers, and there often are in important cases, and the court might have to compare what was taken down by all of them and come to some conclusion as to what was the charge, if there is any question. Now I have done that. I do not think that judicially I can assume that there is any possibility of error in that procedure, and at all events that is what has been done. When it comes to a bill of exceptions, as I understand it, the charge, whether in whole or in part, whatever goes into the bill of exceptions, must be that official charge. If a party thinks he has been wronged in any way by the charge as •signed and filed in the court, of course there must be some way of getting at a remedy; but I doubt whether this application to insert the notes of the stenographer, — in this case not an experienced one, — is the way. I am not sure, because the whole matter is new, but at all events the charge that goes into the bill of -exceptions,- — unless I admit that I filed something that is not true, and of course I cannot admit that, — must be the official charge, and any exceptions must be shown as taken to this. If that charge is not correct, there must be some way of getting at it, but I do not think it can be done by inserting imperfect notes in the bill of exceptions. Sometimes,-as to a document in evi-■denee, the court above directs the original paper to be brought rip by certiorari. That is done where the court deems it necessary to have the original paper before it. My sending the original would amount to the same thing. Here is the paper. The notes, as handed mo by the district attorney’s stenographer, are those typewritten, with corrections in my writing where I think the stenographer .made a mistake. It is in the files, and there must be some way in which either side can use the original paper. It is an official document, and parties are certainly entitled to any proper use of an official paper. I think when it comes to a bill of exceptions I am the one to determine what is the charge of the court, and anything else that was done. If the bill is not correct the appellant can establish a different bill of exceptions by a well-known procedure, which course, however, is not pursued in this case. The reason I did not sign the bill tendered was that I wanted to compare the exceptions set out with the official charge. It struck me that there might be a difference on this particular point, which was mentioned casually the other day, and I find there is. The exceptions were incorrect. Upon reading Rule — as shown me, I think sending-up the charge as filed will serve all purposes, and I will make an order directing the clerk to do so.

The above is a summary of what was said by the court at .different times during the proceedings of February 11 as to the bill of exceptions and is filed as the opinion of the court in the premises.  