State ex rel. Gibson v. Cornwell

• Decision Date: 12 June 1906
• Citation: 14 Wyo. 526,85 P. 977
• Parties: STATE EX REL. GIBSON, AS PROSECUTING ATTORNEY v. CORNWELL
• Court: Wyoming Supreme Court

85 P. 977

14 Wyo. 526

STATE EX REL. GIBSON, AS PROSECUTING ATTORNEY v. CORNWELL

Supreme Court of Wyoming

June 12, 1906

EXCEPTIONS by prosecuting attorney to rulings in a criminal case, in the District Court, Albany County; HON. CHARLES E CARPENTER, Judge

Heard on motion to strike the bill of exceptions, and petition in error, and to dismiss the cause.

Cause dismissed.

H. V S. Groesbeck, for the motions to strike the bill and dismiss the cause.

This proceeding has been treated by the prosecuting attorney as demanding the filing of a petition in error. The statute requires that in all criminal cases proceedings to reverse or modify the judgment must be commenced by petition in error in the same manner as in civil cases. (Sess. L. 1901, Ch. 63 amending Sec. 5422, Rev Stat.) A summons in error is required in all civil cases on error unless waived. (Rev. Stat., Sec. 4251.) And such process issues upon the written precipe of plaintiff in error or his attorney. (Rev. Stat., Sec. 4252.) No summons in error having been issued, and the time having elapsed therefor, the proceedings should be dismissed. (Hester v. Smith, 5 Wyo. 291.)

The notice to the trial judge of the prosecutor's intention to file his bill of exceptions with the Supreme Court is fatally defective, in that it refers to the decision complained of as having been made by this (Supreme) Court, instead of the District Court of Albany County; and moreover it erroneously states the date of the decision. The notice is jurisdictional and cannot be amended.

The petition in error is defective in that the venue is laid in the County of Albany, and in the District Court of the Second Judicial District, instead of in the Supreme Court. The defect is fatal to the jurisdiction.

No brief was filed in support of the exceptions until long after the expiration of the time allowed therefor, and the permission to file the same was not granted until the time allowed for filing brief had long expired. For that reason the cause should be dismissed. It will not do to say that notwithstanding the laches of the proper officers of the state, charged with the prosecution or oversight of such matters, the court, or any of its justices, can extend this time, after the expiration of the time allowed by the rule, which has the force of a statute. This court has no such power, and certainly never could exercise it without notice to the adverse party. It seems to be admitted, although we do not concede this assumption, that the Attorney General alone has the supervision of this matter, that claim being based, probably, upon the provisions of Section 99 of the Revised Statutes, which, inter alia, provides that the Attorney General "shall represent the state in all criminal cases in the Supreme Court." If the authority of the Attorney General is not conferred by this clause or provision, we take it, that he has no right whatever to appear in this cause. We insist that as this court remarked in the case of Sheehan v. First Macy Ditch Company, 12 Wyo. 176, 177: "There is, therefore, nothing for the court to do but dismiss the cause." See also Robertson v. Shorow, 10 Wyo. 368. The brief was filed by the Attorney General. We contend that he has no right to appear in such a proceeding as this, which is specially provided for by statute, and makes no provision for the appearance of any other officer than the prosecuting attorney in support of the exceptions.

But the court ought not to be compelled to pass upon the questions presented by the bill in any event. The statute authorizing the proceeding is of doubtful constitutionality. It was adopted long before statehood, and the adoption of the present constitution; and its provisions are repugnant to that instrument, particularly the provisions thereof defining the jurisdiction of this court. The statute formerly existing allowing questions to be reserved by a District Court for the decision of this court has been so amended as now to permit of none but constitutional questions to be so reserved; which, in effect, impliedly repeals the sections authorizing the proceeding attempted in this case.

Where evidence was submitted to the court below, and formed the basis of its decision, whether on demurrer or trial, and the consideration of the same is necessary to a determination of the cause, it must be incorporated in the bill of exceptions. (Groves v. Groves, 9 Wyo. 172; Underwood v. David, id., 178.) In this case the legislative journals were read in evidence upon the question of the validity of the act under which the prosecution was brought, but the same are not incorporated in the bill.

The prosecuting attorney waived his right to except to the ruling upon the demurrer, because it appears from the pretended bill of exceptions, directly following the order of the court overruling the demurrer, and giving said prosecuting attorney time within which to prepare and present his exceptions to the court or judge for allowance, that said prosecuting attorney then and there excepted to such ruling of the court, including the giving and allowing time to prepare and present his exceptions.

The law requires that the bill containing the exceptions shall be signed "and sealed" by the court. (Rev. Stat., Sec. 5378.) Neither the private seal of the judge nor the seal of the court nor any seal whatever appears to the bill of exceptions. This requirement of the law is just as imperative and mandatory as the provision requiring the bill to be signed. The absence of the seal is fatal to the bill. It is absolutely necessary to have a bill of exceptions in cases like the one at bar, to have it signed and sealed by the court, to have it by order of this court filed, if the law is yet in force. There does not appear to be any journal entry in the transcript of these proceedings in the District Court for Albany County, Wyoming, that would aid, amend or cure in any manner these fatal omissions found in the pretended bill of exceptions.

The pretended bill is not authenticated or identified in any manner by the clerk of the District Court. It is not included in the original papers and journal entries. It is not therefore entitled to consideration. (Hogan v. Peterson, 8 Wyo. 549; Moyer v. Preston, 6 id., 308; Board v. Shaffner, 10 id., 181.)

W. E. Mullen, Attorney General, Contra.

The action of counsel appointed to argue in opposition to the exceptions in this cause in filing the motions to strike the bill and dismiss the cause amounted to a general appearance in this court. It is well settled that any action on the part of a defendant which has for its purpose anything more than an exception to the jurisdiction, or which recognizes the case as being in court, amounts to a general appearance. (Honeycutt v. Nyquist (Wyo.), 74 P. 92; 2 Ency. Pl. & Pr., 632; 3 Cyc., 504.) It was the undoubted intention of the Legislature by the statute authorizing the proceeding instituted here to provide a plain, speedy and effective method of securing a review of exceptions taken to rulings made by trial courts in criminal cases on the part of the prosecution, for the purpose of settling questions of law, that might govern in future cases of the same character. The decision of this court could not in any manner affect the rights of the defendant Bailey Cornwell, and it is difficult to understand why he should be interested in this proceeding. The statute has not been repealed.

It is true that subsequent legislation has been enacted on the subject of appeals in criminal cases, whereby a defendant who has been tried upon a criminal charge may if dissatisfied with the result of his trial in the District Court secure a review of the case in this court, by proceedings in error, but these provisions will be found upon a careful examination thereof to be in no wise in contravention of the law here under discussion. Repeals by implication are not favored and to operate as such it must be a necessary implication. The two statutes must be positively repugnant, or there is no repeal. If they can stand and both have effect they must be allowed to do so. (Standard Cattle Co. v. Baird, 8 Wyo. 144.) There is no other provision whereby the state may secure a review of rulings made by a District Court, other than the provision of the statutes under which this appeal was brought. The two methods of procedure, the one designed for the relief of a defendant, and the other for the benefit of the state in order to secure an interpretation of its criminal statutes when deemed advisable in the court of last resort for the purpose of settling such questions as might arise in a trial of criminal cases. Each has a separate, distinct and independent purpose.

In the present case the necessity of a bill of exceptions is not quite apparent. The case was disposed of below by a ruling made upon a demurrer filed to the information and the appeal is virtually taken on the record, that is, on the information, demurrer and order of the court sustaining the demurrer, which are really all the papers that are necessary for a full determination of the case by this court. (Board v. Shaffner, 10 Wyo. 181.) The introduction of evidence in support of a demurrer is not permitted by the practice of this jurisdiction. It is immaterial whether the transcripts of the journals of the Territorial Legislatures which are referred to in the motion and brief of counsel were preserved in the bill of exceptions or not. This court will consult the official journals of the House and Senate as evidence on any principle prescribed by the constitution for the passage of laws. (State ex rel. Hynds, 12 Wyo. 265.)

Objection is made to any appearance by the Attorney General in a case of this character and it is argued that Section 5379, R. S.,...