The opinion
Beatty, C. J., concurring.
I concur in the judgment, and generally, in the opinion of Justice Temple, but I think a word should be added with reference to the novel practice pursued in this case, of bringing up the appeals from the judgment and from the order denying a new trial separately, and upon different records.
This case fully illustrates the proposition that such practice is productive of delay and unnecessary expense, and that it is as inconvenient as it is unusual. For the purpose of preventing such proceedings in the future, I would suggest that this may easily be done by following the directions contained in section 1246 of the Penal Code, which impose upon the county clerk the duty of printing and transmitting the record in criminal cases. The Penal Code, sections 1170-73, provides for various bills of exceptions to be settled before, during, and after the trial, all or any of which may be used in support of an appeal from the judgment, but “the bill of exceptions” especially referred to in section 1246 is that provided for in section 1171, viz., the bill of the exceptions taken at the trial, and which must be presented for settlement within ten days after the judgment.
If no such bill of exceptions has been settled when the appeal is taken, and the time for its presentation has not elapsed, the clerk should wait till it has been settled, or until the right to have it settled has been lost or waived, before printing the record, and when he does print it he should, as the almost universal practice is, and as I think the statute clearly intends, print the *168 entire record, including all bills of exception, in one record for both appeals.