State v. O'Donald
| Decision Date | 21 February 1895 |
| Citation | 39 P. 556,4 Idaho 343 |
| Parties | STATE v. O'DONALD |
| Court | Idaho Supreme Court |
DEFECTIVE RECORD ON APPEAL.-A record on appeal which does not comply either with the statutes or with the rules of this court will not be considered.
INSTRUCTION-EXCEPTION TO MUST BE BEFORE VERDICT TO BE CONSIDERED.-Where instructions are given by the court upon its own motion they must be excepted to before verdict to be considered here.
(Syllabus by the court.)
APPEAL from District Court, Bingham County.
Affirmed.
E. P Blickensderfer, for Appellant.
The court should have granted appellant's motion for a continuance. A sufficient showing of diligence in the attempt to procure the attendance of witnesses was made, and the court should not have jeopardized this man's liberty by refusing his reasonable request for a continuance in order to procure witnesses to prove so important a fact as his absence from the place when the alleged crime was committed. (Harrington v. State, 31 Tex. Cr. 577, 21 S.W. 356; Gum v. State, 21 S.W. 44; Arrington v State, 20 S.W. 927; Hyden v. State, 31 Tex. Cr. 401, 20 S.W. 764.)
George M. Parsons, Attorney General, for the State.
The defendant moved the court for a continuance, which motion was on the following day overruled by the court, to which ruling the defendant then and there excepted. If the defendant desired to avail himself of this exception on appeal, the exception taken should have been brought before this court by bill of exceptions, properly signed and settled. Not being so presented, it cannot be entertained by this court. (People v. Ashnouer, 47 Cal. 98, 99; People v Weaver, 47 Cal. 106-108; People v. Williams, 45 Cal. 27; People v. Waters, 1 Idaho 560, 561; People v. Marks, 72 Cal. 46, 47, 13 P. 149.)
The defendant was convicted of the crime of burglary. Appeal is taken from judgment and sentence thereon. No bill of exceptions appears in the record. In fact, there is no record, such as is contemplated by the statute. Unless the record shows a substantial compliance with the statutes and the rules of this court, it will not be considered. What purports to be the record is merely a copy of the information, a copy of three affidavits by defendant, and one by his wife, in support of a motion for a continuance, the motion for a continuance, and the order of the court overruling the same, the instructions of the court, to which no exceptions were taken, the verdict, and judgment thereon. The action of the court in overruling the motion...
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State v. Peck
...but the record discloses that no exception was taken to such instruction, and it cannot, consequently, now be considered. (State v. O'Donald, 4 Idaho 343, 39 P. 556; State v. Hurst, 4 Idaho 345, 39 P. 554; v. Biles, 2 Idaho 114, 6 P. 120; State v. Suttles, 13 Idaho 88, 88 P. 238; State v. O......
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Gumaer v. White Pine Lumber Co.
... ... that proper instructions covering the point were given ... (Hopkins v. Utah Northern R. R. Co., 2 Idaho 300, 13 ... P. 343; State v. O'Donald, 4 Idaho 343, 39 P ... 556; Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed ... 141. See Elliott's Appellate Procedure, par. 701.) ... ...
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... ... T. L ... Glenn and John A. Bagley, for Appellant ... Newly ... discovered evidence: The affidavits must state facts showing ... due diligence and why the evidence was not discovered ... (People v. Ah Fan, 53 Cal. 741; State v ... Davis, 6 Idaho 159, 53 ... ...