People v. Sakelaris

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[Crim. No. 5837. Second Dist., Div. One. June 18, 1957.]

THE PEOPLE, Respondent, v. PAUL SAKELARIS, Appellant.

COUNSEL

Ray M. Davidow for Appellant.

Edmund G. Brown, Attorney General, and Herschel T. Elkins, Deputy Attorney General, for Respondent.

OPINION

THE COURT.

Respondent moves that pursuant to rule 18 of the Rules on Appeal, appellant's opening brief "be returned to the appellant for correction by cancellation, revision or replacement in whole or in part and to be redeposited with the clerk within the time specified in the order."

[1] An examination of the record reflects, as contended by respondent, that, "In Appellant's Opening Brief (pages 8 to 9), he has included an affidavit concerning the tone of voice of the trial judge. Such, we submit, is not included in the record on appeal and therefore cannot be considered on appeal."

On appeal, it is established under rule 13, Rules on Appeal, that no facts outside the record and no affidavits which were [151 Cal. App. 2d 759] not before the trial court can be considered. In the instant case no affidavit was presented to the trial court, nor were objections to the tone of voice of the judge made in the court below. Therefore, the so-called tone of voice of the judge is not in the record on appeal, and no reference thereto is contained in such record. It cannot therefore now be presented to this court by affidavit.

It is therefore ordered, pursuant to rule 18 of Rules on Appeal, that appellant's opening brief be returned to him for correction by cancellation, revision or replacement in whole or in part, in accordance with the views herein expressed, said brief to be redeposited with the clerk of this court within 20 days from and after the date of filing of this order.