And a circumstance in favor of innocence. to allow should be made to the Supreme Court; there being no provision for such proceeding in the Court of Appeal. [Ed. Note. For other cases, see Courts, Dec. Dig. § 212.*1 Application by John La Pique to prove exceptions taken on trial in a superior court which the trial judge refused to allow. Application dismissed. See, also, 98 Pac. 256, 257. PER CURIAM. An application to prove exceptions taken upon a trial in the superior court, and which the trial judge refused to Since the allow, was made to this court. matter was presented the petitioner has filed in the Supreme Court an application to that court for the same purpose. It appearing from an examination of section 1174 of the Penal Code that the statute provides that such application be made to the Supreme Court, and that no provision is made for such proceeding in this court, the application to this court is hereby dismissed. 9. The court explained to the jury what is meant by "circumstantial evidence," and gave instructions in regard thereto, several being given at the request of defendant. Appel-1. lant now says, "The charge of the court as to the value and effect of circumstantial evidence is an argument in favor of that class of evidence," but fails to point to any statement in the instructions in support of this contention. After a careful examination of the instructions on circumstantial evidence, we have failed to find anything that can fairly be said to be argumentative. (9 Cal. A. 241, CURTIN v. INGLE. (Civ. 545.)† (Court of Appeal, First District, California. Oct. 28, 1908.) FILING APPEAL AND ERROR (§ 622*), Appellant is not within a proviso to Court of Appeal rule 2 (144 Cal. xi, 78 Pac. vii), providing that the time for filing the transcript on appeal (ordinarily 40 days from perfection of appeal) shall not, when a proceeding for settlement or statement on appeal is pending, commence to run till the settled statement is filed, where no proceeding for settlement of a statement was pending within said 40 days, but respondent was served with a statement long thereafter. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2735; Dec. Dig. § 622.*] 2. APPEAL AND ERROR (§ 624*)-FILING TRANSCRIPT-TIME-PROVISO TO RULE. 10, 11, and 12. Appellant finally criticises some general observations made by the court, intended to guard the jury against being moved by pity for defendant, or prejudice or passion that might be caused by the heinous Appellant is not within a proviso to Court nature of the crime, and to impress upon of Appeal rule 2 (144 Cal. xi, 78 Pac. vii), as to them the serious nature of the duties they time for filing the transcript on appeal, extending the time when appellant has given notice of were called upon to perform. We find noth-motion for a new trial before perfecting the ap ing of merit in this criticism. In conclusion, we will say that, after a careful examination of the whole record, we are unable to find any just cause for reversing the judgment of conviction in this case, but are of opinion that the judgment and orders should be affirmed, and it is so ordered. We concur: GAN, J. peal; he having perfected his appeal the day 3. APPEAL AND ERROR (§ 620*)-FILING TRAN- Even if it be immaterial that appellant perfected his appeal the day before he gave notice of motion for a new trial, the proviso to Court of Appeal rule 2 (144 Cal. xi, 78 Pac. vii), exCOOPER, P. J.; KERRI- tending till the decision of the motion, the time (Court of Appeal, Second District, California. Oct. 28, 1908.) COURTS (§ 212*)-JURISDICTION. from which the 40 days for filing the transcript on appeal shall commence to run, will not avail him; the transcript not having been filed within 40 days after denial of the motion. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 620.*] 4. APPEAL AND ERROR (§ 627*)-SETTLEMENT OF STATEMENT LACHES QUESTION FOR TRIAL COUrt. Under Pen. Code, § 1174, an application to Whether there has been such laches and deprove exceptions which the trial judge refuses lay in settlement of the statement on appeal as For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes For Supreme Court opinion, see 99 Pac. 480. to warrant the trial court in dismissing the 1908, the statement and amendments were proceeding therefor is a question primarily for delivered to the clerk of the court for the such court. judge for settlement, and the settlement thereof is now pending and set for hearing. The 5. APPEAL AND ERROR (§ 628*)-DISMISSAL- affidavits on file do not show that any stipuPRESUMPTION-NEGLECT IN SETTLING STATE-lation had been entered into or order made [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 627.*] MENT. No motion having been made in the trial court to dismiss the proceeding to settle the statement on appeal, but it still being pending there unabandoned, it must be assumed, on motion to dismiss the appeal for failure to file the transcript in the prescribed time, that appellant in that proceeding has been guilty of no inexcusable neglect. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 628.*] 6. APPEAL AND ERROR (§ 628*)-DISMISSALDELAY IN FILING TRANSCRIPT-NEGLECT. As the transcript on appeal cannot be filed till the statement is settled, appellant is not guilty of inexcusable neglect in failing to file the transcript in the prescribed time, where the statement has not been settled, and he has not been guilty of neglect therein. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 628.*] 7. APPEAL AND ERROR (§ 627*)—DISMISSALDELAY IN FILING TRANSCRIPT. The facts disclosed by the record, on motion to dismiss the appeal for failure to file the transcript in the prescribed time, being such that an extension of time would have been granted by the Court of Appeal, had application therefor been made to it, the appeal will not be dismissed, especially where the rule of court invoked for the dismissal does not seem to be primarily designed to deal with a case of the character in hand. extending the time to serve and file the transcript on appeal. The respondent contends that the transcript on appeal from the judgment should, under rule 2 of this court, have been filed 40 days after the appeal was perfected. This, of course, is true unless the facts bring the case within either of the two provisos of the rule extending the time, or unless good cause is shown for the delay. Rule 2 (144 Cal. xi, 78 Pac. vii) reads as follows: "The appellant in a civil action shall within forty days after the appeal is perfected serve and file the printed transcript of the record, duly certified to be correct by the attorneys of the respective parties, or by the clerk of the court from which the appeal is taken; provided, that when there is a proceeding pending for the settlement of a bill of exceptions or a statement which may be used in support of such appeal, the time for filing and serving the tranScript shall not begin to run until the settled and authenticated statement or bill of exceptions has been filed; and provided, further, that when a party appealing from a judgment has given notice of motion for a new trial before perfecting said appeal, the time [Ed. Note. For other cases, see Appeal and for filing and serving the printed transcript Error, Dec. Dig. § 627.*] Appeal from Superior Court, City County of San Francisco; Thomas F. ham, Judge. Action by D. A. Curtin against J. W. Ingle. From a judgment for defendant, plaintiff appealed. Defendant moves to dismiss the appeal. Motion denied. William M. Cannon, for appellant. Wal J. Tuska, for respondent. KERRIGAN, J. This is a motion to dismiss an appeal from a judgment. The ground of the motion is that the transcript was not filed within 40 days after the appeal from the judgment was perfected. shall not begin to run until the motion for and a new trial has been decided or the proceedGra-ing dismissed for want of prosecution; and the appeal from the judgment and from any order denying a new trial of the issue may in all cases be presented upon the same transcript." The appeal from the judgment, as we have just seen, was perfected May 27th, and not within 40 days thereafter, nor, indeed, until nearly 7 months later (December 17th), when appellant served respondent with a statement on appeal, can it be said that there was pending a proceeding for the settlement of a statement which might be used to support such appeal. Hence, as there was no settlement of a bill of exceptions or statement pending within 40 days after the perThe judgment in this case was entered fecting of the appeal, the first proviso of May 22, 1907, and, for the purpose of keep- rule 2 does not apply. Nor does appellant ing alive an attachment, plaintiff took and come within the second proviso, for instead' perfected an appeal therefrom within five of giving the notice of motion first and perdays, to wit, on May 27, 1907. On May 28. fecting his appeal afterward, he did the re1907, plaintiff served and filed his notice of verse. He perfected the appeal May 27th, motion for a new trial, to be heard on the and the next day gave his notice of motion minutes of the court. This motion was heard for a new trial. But assuming, without deOctober 4, 1907, and was denied and entered ciding, that the order in which these two October 14, 1907. Thereafter, and in due steps were taken is, as claimed by appellant, time, on December 17, 1907, the plaintiff unimportant, still this proviso is inapplicable served on defendant his original statement because more than 40 days have long ago. on motion for a new trial, and the defend- elapsed since the motion was denied (Octoant served his amendments thereto December 14th), and no transcript has yet been ber 27, 1907. On the 6th day of January, filed. *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2588; Dec. Dig. § 1023.*] 4. CRIMINAL LAW (§ 998*)-JUDGMENT-MOTION TO SET ASIDE - ASCERTAINMENT OF FACTS. The court, on a motion to set aside a judg ment of conviction entered on a plea of guilty extorted by fear of violence, is not bound to actition in support of the motion, but must ascercept as true the statements of accused in his petain the facts and act accordingly. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2549; Dec. Dig. § 998.*] 5. CRIMINAL LAW (§ 998*)-JUDGMENT-SETTING ASIDE EVIDENCE. The rule covers the majority of cases, but, plea, on the ground that it was extorted from it does not seem to contemplate a state of him by fear of violence, is appealable within Pen. Code, § 1237, authorizing appeals from orfacts such as is here presented. However ders after judgment affecting the substantial this may be, we are of the opinion that the rights of accused. circumstances of the present case show a sufficient excuse why the transcript has not yet been served and filed. Inasmuch as the question of laches or delay in the settlement of a statement is primarily one to be determined by the trial court (Dernham v. Bagley, 151 Cal. 219, 90 Pac. 543), and as no motion has been made there to dismiss the proceeding, and as it is still pending there and not abandoned, we are bound to assume that the appellant in that proceeding has been guilty of no inexcusable neglect. If he has not been guilty of neglect there, and as the transcript cannot be served and filed until the statement is set tled, we certainly cannot hold that he has been guilty of inexcusable neglect here. The facts disclosed by the record in this case are such that, had the appellant made application to this court for an extension of time in which to serve and file the transcript, such extension would have been granted; and we see no reason why the same considerations should not have weight in the determination of this motion (Chapman v. Bank of California, 88 Cal. 420, 26 Pac. 608), particularly as the rule of court here invoked for the dismissal of the appeal does not seem to be primarily designed to deal with a case of this character. The motion to dismiss the appeal is denied. We concur: COOPER, P. J.; HALL, J. (9 Cal. A. 265) PEOPLE v. PEREZ. (Cr. 76.) 1. CRIMINAL LAW (§ 998*)—JUDGMENT ON A motion to set aside a judgment of conviction on a plea of guilty, and to permit accused to withdraw his plea, on the ground that it was extorted from him by fear of violence, is the proper procedure for the avoidance of a judgment on a plea of guilty extorted by fear of violence; the statute not providing how the action of the court shall be invoked for the avoidance of such judgment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2549; Dec. Dig. § 998.*] 2. CRIMINAL LAW (§ 538*)-CONFESSION OF GUILT THROUGH DURESS-EFFECT. A motion to set aside a judgment of convic tion, entered on a plea of guilty, on the ground that the plea was extorted by fear of violence, held properly denied on the showing made. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2549; Dec. Dig. § 998.*] Appeal from Superior Court, Merced Coun ty; E. M. Rector, Judge. Juan Perez was convicted of robbery, and from an order denying a motion to set aside the conviction, and to permit accused to withdraw his plea of guilty, he appeals. Affirmed. U. S. Webb, Ben. Berry, for appellant. BURNETT, J. Appellant pleaded guilty to the crime of robbery, and on March 23, 1997, he was sentenced to the penitentiary for life. On the 2d day of March, 1908, he filed a petition in the lower court alleging: That his plea of guilty was made while under duress, "in that subsequent to his arrest, and prior to the preliminary examination, and while incarcerated in the county jail, the sheriff represented to him that he was in immediate danger of mob violence, and the only way to escape the same was to plead guilty and be immediately taken to the penitentiary. That believing and acting solely upon said representations, he did then and there consent to plead guilty to said charge of robbery." On March 31, 1908, after notice given to the district attorney, counsel for petitioner moved the court to grant a writ of error coram nobis in accordance with the allegations and prayer of the petition. Affidavits in opposition to the motion were offered by the district attorney, which were received in evidence by the court over the objection and exception of petitioner, and from the order denying said motion the appeal has been taken. It is claimed by respondent that no such A confession of guilt obtained by duress is void and cannot form the basis for a valid judg-proceeding is known to our practice as an ment. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1227; Dec. Dig. § 538.*] 3. CRIMINAL LAW (§ 1023*)-PLEA-ORDERS APPEALABLE-ORDER AFTER JUDGMENT. An order denying a motion to set aside a judgment of conviction entered on a plea of guilty, and to permit accused to withdraw his application for the writ of "error coram nobis"; but we need not discuss this technical phase of the question, as we consider the proceeding here equivalent to a motion that the court set aside the judgment and permit the defendant to withdraw his plea of guilty upon the ground that it was extorted from him For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 584; Dec. Dig. § 160.*] 2. JUSTICES OF THE PEACE (§ 63*)—PROCEDURE by fear of violence. That such a motion is on the adverse party, the order in which the A confession notice is filed and served is immaterial. proper we entertain no doubt. of guilt obtained by duress is void and cannot be the basis for a valid judgment. The statute does not expressly provide how the action of the trial court shall be invoked for the avoidance of such a judgment, but under the authorities it is clear that the proper procedure is by motion supported by documentary or oral evidence, or both. Again, it is contended by the Attorney General that no appeal lies from the order denying the motion; but in this we think respond ent is in error, as this is an "order made after judgment affecting the substantial rights of the defendant." Section 1237, Pen, Code. The order should be affirmed, however, for the all-sufficient reason that the trial court was justified in believing that defendant's plea was entirely voluntary. The court was not bound to accept as true the statements of appellant in his petition, but it was its duty to ascertain the facts and act accordingly. The affidavits of the sheriff and other witnesses are clear and complete to the effect that nothing whatever was said to appellant about mob violence, and that there was no support for his claim of coercion. No doubt, if appellant had desired to make a further showing, upon application, the court would have granted him permission; but from the record before us we must conclude that appellant committed a most atrocious crime, and that the judgment of the court is valid and must be upheld. The order is affirmed. We concur: CHIPMAN, P. J.; HART, J. (Cr. 77.) PEOPLE v. MONTANO. (Court of Appeal, Third District, California. Oct. 31, 1908.) Appeal from Superior Court, Merced County; E. M. Rector, Judge. Antone Montano was convicted of crime, and from an order denying a motion to set aside the judgment, and to permit accused to withdraw his plea of guilty, he appeals. Affirmed. Ben. Berry, for appellant. U. S. Webb, Atty. Gen., for the People. PER CURIAM. This case is in all essential respects similar to People v. Perez (No. 76, this day decided by this court) 98 Pac. 870, and for the reasons therein stated the order is affirmed. (30 Nev. 495) STATE ex rel. JONES et al. v. BROWN, District Judge, et al. (No. 1,722.) (Supreme Court of Nevada. Dec. 31, 1908.) 1. JUSTICES OF THE PEACE (§ 160*)-APPEAL NOTICE-FILING AND SERVICE-ORDER. Under Comp. Laws, § 3676, providing that an appeal from justice court shall be taken by filing notice with the justice and serving a copy -LIBERAL PRACTICE. A more liberal rule of practice prevails in procedure in justice courts than in higher courts. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 225; Dec. Dig. § 63.*] 3. JUSTICES OF THE PEACE (§ 159*)-APPEALUNDERTAKING-SUFFICIENCY. Under Civ. Prac. Act, § 584 (Comp. Laws, § 3679), requiring appellant from justice court to file a $100 undertaking to pay the costs on appeal, or, if a stay of proceeding is claimed, an undertaking in a sum equal to twice the amount of the judgment, an undertaking for $600 reciting a desire to appeal and binding appellant to pay the judgment and all costs, on withdrawal or dismissal of the appeal or to pay the judgment on appeal, is good as an undertaking to pay the costs on appeal, and is sufficient to perfect the appeal, regardless of its sufficiency to stay proceedings. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. 88 563-565; Dec. Dig. § 159.*] Sweeney, J., dissenting. Application by the State of Nevada, on the relation of H. J. Jones, and another, for a writ of prohibition against George S. Brown, District Judge, and another. Writ denied. E. J. L. Taber, for relators. F. S. Gedney, and Charles B. Henderson, for respondents. NORCROSS, J. Relators contend that the district court, respondent herein, is without jurisdiction to consider an appeal from the justice court for the reason that the notice of appeal was served before it was filed, and, further, because there was no sufficient undertaking upon appeal. The notice and undertaking were both filed upon the same day and within the 30 days prescribed by statute for taking appeals from justice's courts. Comp. Laws, § 3676. The notice of appeal bears the acknowledgment of the service of a copy thereof on the same day that the original was filed. Upon the hearing of the motion made to dismiss the appeal, proof was offered showing that the attorney for the defendant in the justice's court delivered a copy to the plaintiff's attorney, and took his acknowledgment of service upon the original, and shortly thereafter filed the original with the justice. The testimony given in respect to this filing and service is as follows: “I cannot say positively that I went directly from Mr. Taber's office to the office of said justice, and filed the original notice of appeal immediately, but believe I did. From Mr. Taber's office to the justice's office is about two blocks. I might not have gone direct from Mr. Taber's office to the justice's office and filed the original notice of appeal, but believe I did. I may have been detained on the way. I cannot say for certain which was the case." For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes This court in the case of Lyon County v. Washoe County, 8 Nev. 177, construing the statute regulating appeals from the district to the Supreme Court, followed the law as laid down by the early California decisions construing a statute from which ours was doubtless adopted, and held "that, to render an appeal effectual, the filing of the notice of appeal must precede or be contemporaneous with the service of the copy; otherwise, that which purports to be a copy fails as such for want of an original to support it." This rule has been cited and followed in a number of decisions of this court, and has been regarded as the settled practice in so far as appeals from the district court to this court are concerned. Johnson v. Mill, etc., Co., 12 Nev. 261; Reese, etc., M. Co. v. Rye Patch, etc., M. Co., 15 Nev. 341; Spafford v. White River, etc., Co., 24 Nev. 184, 51 Pac. 115; Brooks v. Nev. Nickel Syndicate, 24 Nev. 264, 52 Pac. 575. In the cases in 12 Nev. 261, and 15 Nev. 341, supra, the precise point was not directly involved, the question in both cases being in reference to the proper time for filing the undertaking. However, this court, whenever it ́has had occasion to refer to the question, has always considered it as settled beyond controversy. In the case of Reese M. Co. v. Rye Patch, etc., M. Co., supra, counsel urged upon the court the advisability of departing from the strict rule laid down in the Lyon County Case, supra. Considering this re quest, this court, by Beatty, C. J., said: "There ought not to be any difficulty in understanding this rule, and none in following it; and, even if we were to concede that, as an original proposition, the statute might well have been construed to mean something else, there would be no reason for adopting such a construction at this late day. This is the first time it has ever been sought in this state to apply the same rule to appeals from justice's courts to district courts, which appeals are taken under the provisions of another section of the statute than that construed in the cases referred to. It may be conceded that the language of the two sections are very similar, and, from this, it may appropriately be argued that the same rule ought to prevail. If, however, the rule is one susceptible of much criticism, and in practice in the higher courts has been productive of hardship, it is a matter seriously to be considered whether the rule ought to be extended to practice in the justice courts, where more liberal rules in re spect to pleading and practice generally prevail. The section of the California Code relative to appeals from justices' courts is substantially the same as that of this state, and reads as follow: "Any party dissatisfied with a judgment rendered in a civil action in a police or justice's court, may appeal therefrom to the superior court of the county, at any time within thirty days after the rendition of the judgment. The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party. The notice must state," etc. Code Civ. Proc. Cal. § 974. This section was never amended as was section 940, so as to provide specifically that "the order of service is immaterial." The question in respect to the order in which the notice of appeal from a justice's court should be filed and served under the provisions of the section of the statute quoted first came before the Supreme Court of California in the case of Coker v. Superior Court, 58 Cal. 177, upon an application for a writ of prohibition, as in this case. Without any reference whatever to the earlier Cali For these reasons, we would not feel justi-fornia decisions which had construed the fied in setting aside our former decisions up- statute regulating appeals to the Supreme on the matter in question, even if we were Court, the court, quoting from the syllabus, better satisfied than we are that our con- held: "To effectuate an appeal from the struction of the statute rests upon implica-judgment of a justice of the peace three tions too far fetched and reasons too insub- things are necessary, viz., the filing of a nostantial. In matters of practice like this tice of appeal with the justice, the service there must be some rule and even a poor of a copy of the notice upon the adverse par'rule uniformly maintained is better than no ty, and the filing of an undertaking; and all . rule at all, or a rule subject to continual of these things must be done within 30 days 'changes." In the application of the rule in after the rendition of the judgment, and are question, parties have in many, if not the jurisdictional prerequisites. But the mere great majority, of cases, lost their rights of order in which they are done within that appeal upon a technicality that did not af- time is not material. Accordingly, where a fect the substantial rights of the opposite judgment was rendered in a justice's court parties. The harshness of this rule doubt- on June 12th, and a notice of appeal served less led the Legislature of California to on June 16th, and filed on June 17th, and the amend their statute so as to provide that undertaking on appeal filed July 7th, held "the order of service is immaterial." Code the appeal was well taken." The foregoing 'Civ. Proc. Cal. § 940. The cases both in this rule has been cited as authority and specifcourt and in that of California which adopt-ically followed in a number of later Califored and followed the rule heretofore mention- nia decisions, and may be regarded as the ed were cases upon appeal to the Supreme Court, and the section of the statute construed was that regulating appeals to the Supreme Court. settled rule of procedure in that state. Dalzell v. Superior Court, 67 Cal. 453, 7 Pac. 910; Hall v. Court, 71 Cal. 550, 12 Pac. 672; Dutertre v. Court, 84 Cal. 535, 24 Pac. 284; |