
    [Crim. No. 1495.
    In Bank.
    November 13, 1908.]
    THE PEOPLE, Respondent, v. JOHN LAPIQUE, Appellant.
    Appeal in Criminal Case — Proving Exceptions — Application Must Be Made to District Court oe Appeal. — An application by a defendant in a criminal prosecution, under section 1174 of tbe Penal Code, to be allowed to prove certain exceptions claimed to have been disallowed by tbe judge of tbe superior court before whom tbe ease was tried, should be made to tbe district court of appeal of tbe district to wbicb an appeal in tbe case must be taken, and not to tbe supreme court.
    Id. — Functions or Presiding Justice. — Tbe provisions of section 1174 of tbe Penal Code, regulating appeals and tbe proving of exceptions, are made applicable to the district courts of appeal by section 4 of article VI of tbe constitution, and tbe functions conferred on tbe chief justice by that section are to -be performed by tbe presiding justice of tbe district court of appeal.
    APPLICATION to prove certain exceptions alleged to have been taken at the trial in the Superior Court of Los Angeles County. W. IT. Jamison, Judge.
    
      The facts are stated in the opinion of the court.
    The Petitioner, in pro. per.
    
   THE COURT

The defendant applies to this court, under the provisions of section 1174 of the Penal Code, to be allowed to prove certain exceptions, which he alleges the judge of the superior court before whom the ease was tried has refused to allow in accordance with the facts.

It appears from his application here that he has made similar applications to the district court of appeal of the second district, which is the court having jurisdiction of any appeal he may take from the judgment against him. He desires to use the bill of exceptions, when settled, in aid of such appeal. The district court refused his applications. The constitution (art. VI, see. 4) provides that “All statutes now in force allowing, providing for, or regulating appeals to the supreme court shall apply to appeals to the district courts of appeal, so far as such statutes are not inconsistent with this article.” The provisions of section 1174 of the Penal Code, so far as that section applies to the matter in hand, are provisions regulating appeals. The proper court to act in the matter of proving an exception not allowed by the trial judge, is the ■court to which an appeal must be taken in the case, in this instance the district court of appeal of the second district. The constitution makes the provisions of section 1174, in respect to such exception, applicable to the district court of appeal and gives that court jurisdiction to entertain and decide an application to prove such exceptions. The functions of the chief justice in that proceeding, as expressed in the statute, will be performed by the presiding justice of the •district court of appeal, he standing in the same relation to that court as that of the chief justice to the supreme court. As the district court of appeal has acted in the matter of the proposed exceptions and given its judgment thereon, the matter is adjudicated and the remedy of the defendant is exhausted, unless he should apply to this court or the district court for a rehearing, which he has not done. The application is dismissed.  