THE PEOPLE, Respondent, v. JOHN LAPIQUE, Appellant, 154 Cal. 518

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.