Middleton v. State

• Decision Date: 21 December 1925
• Docket Number: 1308
• Parties: MIDDLETON v. STATE [*]
• Court: Wyoming Supreme Court

241 P. 715

34 Wyo. 102

MIDDLETON v. STATE ^[*]

No. 1308

Supreme Court of Wyoming

December 21, 1925

ERROR to District Court, Natrona County; ROBERT R. ROSE, Judge.

D. W (Wes) Middleton was convicted of gambling and permitting gambling, and he brings error. Heard on motion to strike Bill of Exceptions and dismiss proceedings.

Motion to dismiss denied.

D. J Howell, Attorney General and John C. Pickett, Asst. Attorney General for the motion.

Bill of Exceptions does not contain a motion for new trial filed within the time allowed by statute; extension of time for filing motion for good cause shown is permissible; 7583 C. S. but without such showing the order is void; Blonde vs Merriam, 21 Wyo. 513, 133 P. 1076; Bill of Exceptions does not show denial of motion and exceptions taken, hence nothing to review; Court Rule 13; Schmidt vs. Bank, 29 Wyo. 260; 212 P. 651; Fitzpatrick vs. Ragan, 28 Wyo. 231, 203 P. 245; the Bill does not contain a transcript of the evidence; a separate volume purporting to be a transcript filed in case is not authenticated and cannot be reviewed; Seng vs. State, 20 Wyo. 222, 122 P. 631; Kopalla vs. State, 15 Wyo. 398, 89 P. 576; the Bill does not contain the evidence and is insufficient; 7538 C. S. error argued by plaintiff in error must be contained in the Bill of Exceptions; State vs. Tobin, 226 P. 681; the Bill should be stricken.

Wm. B Cobb and B. H. Pester contra.

Defendant's motion for new trial was filed within the extension period, and was therefore valid; 7583 C. S.; Casteel vs. State, 9 Wyo. 272; the Bill of Exceptions shows a denial of motion for new trial, which is sufficient; King vs. R. R. Co., (Ky.) 10 S.W. 631; and defendant's exceptions. The transcript may be included in the Bill by reference; Kopalla vs. State, 15 Wyo. 408; the Bill of Exceptions was presented within time; Gilpatrick vs. Perry, 26 Wyo. 538; the record proper carries at least some of the assignments of error, and motion for dismissal should be denied; Underwood vs. David, et al, 9 Wyo. 178; some alleged errors may be decided without a Bill of Exceptions; Bryan vs. Snyder, 27 Wyo. 512; for example, rulings upon the sufficiency of pleadings; Burch vs. Smith, 30 Wyo. 237; also exceptions to a judgment where unsupported by pleadings.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

This cause has been heard upon a motion to strike the bill of exceptions and dismiss the proceeding in error. The defendant was convicted upon an information containing two counts of gambling and permitting gambling; and he was sentenced to imprisonment in the county jail for nine months and to pay a fine of $ 750 under each count, the jail sentences to run concurrently.

The motion to strike the bill is based upon several grounds, all stated under one heading, viz: (a) that the bill of exceptions does not show a motion for a new trial filed within the time allowed by statute. (b) That it does not contain an order overruling the motion. (c) That it does not contain a transcript of the testimony. (d) That the pages thereof are not consecutively numbered. (e) That it was not presented for allowance within the time required by statute. Those are also stated, generally, as the grounds for dismissing the proceeding, with the further ground that the original papers were not transmitted to this court under separate cover and separately authenticated as required by our Rule 10. The motion also contains a paragraph asking that the brief on the merits heretofore filed by the plaintiff in error be stricken for the reason that such brief discusses only questions which, to be available in this court, must have been presented to the court below by a motion for a new trial.

We think it unnecessary to discuss all of the stated grounds alleged for striking the bill; nor need all of those we do consider be discussed separately. That the pages of the bill are not consecutively numbered as required by the rules is not a ground, in the first instance, for dismissal; and that is true also of the failure to separate the original papers from the journal entries in the record as transmitted here. See Rule 10. The bill does not contain the evidence in the case, or any part of it. Among the papers sent here is what appears to be a transcript of the testimony taken in the case, certified as such by the official court reporter, and bearing also the certificate of the clerk of the district court that it is such transcript. But it is not attached to nor in any way made a part of the bill of exceptions, unless it should be so considered, as counsel for plaintiff in error contend, by reason of certain references thereto in the bill. Such references may be illustrated by two or three instances. Thus, the bill states in one paragraph that in the examination of a named prospective juror, "which said examination is reported in part at page 33 of the transcript of testimony, at Question No. 278, and the context therein, the court overruled defendant's challenge for cause after the juror had repeatedly indicated that his mind was not free and unbiased as to the matter in issue and had repeatedly stated that he had an opinion as to the guilt or innocence of the defendant which it would require evidence to change," and that said ruling was duly excepted to. Again, it is stated that exception was duly taken to the admission of exhibit "E" following question No. 560 at page 64 of the transcript of testimony, and that it was admitted over defendant's exception; that it was prejudicial in not having any probative value as to the issues to be determined by the bill and that the fact, if it be a fact, that said exhibit was procured by the witness in the manner specified did not prove or tend to prove the guilt of defendant. Again, it is stated that at question 785 of page 92 of the transcript, the court erroneously sustained an objection to the question on the ground that the same was improper cross-examination, to which exception was duly taken. Also, that during the argument to the jury there was misrepresentation on the part of the prosecuting attorney to the effect that the defendant had not offered any defense or word of explanation on his behalf "as shown at page 128 of the transcript," and that proper objection was made thereto, which was erroneously overruled and exception taken thereto. The above are all contained, as is the case as to all matters throughout the bill, in separately numbered paragraphs, and appear in form to be a statement of exceptions taken by the defendant below. Indeed, in the original bill and also in the amended bill, both of them being in the record, the latter containing in addition to the matter in the former the motion for a new trial set out in full, --the introductory statement is "Be it remembered that at the trial * * * the following exceptions were taken by the defendant to rulings upon questions of law by the trial court." And that seems to be the purport of what is set out in both the original and amended bills, without the statement of any fact explaining the exception otherwise than by references to the transcript of testimony, such as above explained.

Referring to the exception to the challenge of the juror, it would be necessary to resort to the transcript of the evidence to ascertain what his answers actually were upon which the court acted. The bill in that respect states conclusions as to what the evidence shows, and without showing that nothing else was shown thereby, or that the narrative in the bill includes all of the juror's answers. A juror's answers might, we may suppose, be stated in a bill of exceptions in a narrative form if authenticated by the court in that form as a bill and as containing all of the juror's examination. But we do not think that appears to have been the purpose of either the original or amended bill in this case. We cannot go to the transcript for the purpose indicated in the bill, for it is no part of the bill. It is not a part of the record in a proceeding in error unless in the bill of exceptions.

In Seng v. State, 20 Wyo. 222, 122 P. 631, it was said that the bill "as signed by the trial judge, consists of nine pages, under separate cover, bearing the filing mark of the clerk of the district court, and attached to it, but not referred to in the bill or in any way identified or authenticated by the court or judge, is what purports to be a transcript of the shorthand notes taken by the court reporter. * * * The only way this court can know what the evidence in any case was, is by having it incorporated in the bill of exceptions, and properly authenticated by the court or judge as the evidence in the case. The certificate of the court reporter is insufficient for that purpose." (Citing cases).

In addition to those citations, is the much earlier case of Johns v. Adams Bros., 2 Wyo. 194, wherein it was plainly declared that the court would not accept the court stenographer's transcription of the testimony as a substitute for a bill of exceptions, "or in lieu thereof." And that decision was rendered at the March term of 1880, and referred to the statute of December 15 1877, the first law in the territory...