State v. Ford

• Decision Date: 20 April 1921
• Parties: STATE, Respondent, v. OSCAR FORD, Appellant
• Court: Idaho Supreme Court

197 P. 558

33 Idaho 689

STATE, Respondent, v. OSCAR FORD, Appellant

Supreme Court of Idaho

April 20, 1921

MOTION FOR NEW TRIAL-MOTION TO SET ASIDE INFORMATION-DEMURRER-ARREST OF JUDGMENT-INSTRUCTIONS-BILL OF EXCEPTIONS.

1. This court cannot review an order denying motion for a new trial overruling a demurrer to an information, denying a motion to set aside an information or refusing to arrest judgment, nor can it pass upon objections to instructions given on the court's motion, unless such matters are presented by bill or bills of exceptions settled as required by law.

2. Evidence in this case held sufficient to sustain the verdict and judgment.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Appellant was convicted of the crime of adultery. Affirmed.

Affirmed.

Eustace & Groome, for Appellant.

The evidence is insufficient to sustain the verdict and the judgment in this case in that it is not shown that either of the parties had an adulterous tendency. (2 C. J. 23; State v. Scott, 28 Ore. 331, 42 P. 1; State v Kimball, 74 Vt. 223, 52 A. 430; Green v. State, 53 Tex Cr. 540, 110 S.W. 908.)

Roy L. Black, Attorney General, and Clarence S. Hill and James L. Boone, Assistants, for Respondent.

In order to procure a review of the action of the trial court in overruling a demurrer to the information, an exception to such ruling must be saved and presented to the appellate court by a bill of exceptions. (C. S., secs. 9008, 9010; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Crawford, 32 Idaho 165, 179 P. 511.) In order to procure a review of the action of the trial court in giving certain instructions of his own motion, an exception to such instructions must be saved in the record and presented to the appellate court by a bill of exceptions. (C. S., secs. 9008, 9010, 9013; State v. Peck, 14 Idaho 712, 95 P. 515; State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Ray, 32 Idaho 363, 182 P. 857.) In order to procure the review of the action of the trial court in overruling a motion in arrest of judgment, an exception to such ruling must be saved and presented to the appellate court by a bill of exceptions. (C. S., secs. 9008, 9010; State v. Maguire, supra; State v. Crawford, supra; State v. Ray supra.) In order to procure a review of the action of the trial court in overruling a motion for a new trial, an exception to such action must be saved and presented to the appellate court by a bill, of exceptions. (C. S., secs. 9008, 9010; State v. Smith, 4 Idaho 733, 44 P. 554; State v. Park, 31 Idaho 694, 175 P. 813; State v. Ray, supra.)

It is not error for the trial court to refuse to give requested instructions when their substance is fully covered by instructions given. (C. S., sec. 8972; State v. Jones, 28 Idaho 428, 154 P. 378.)

The evidence is sufficient to sustain the verdict. (State v. Scott, 28 Ore. 331, 42 P. 1; Monteith v. State, 114 Wis. 165, 89 N.W. 828; State v. La More, 53 Ore. 261, 99 P. 417; Cummings v. State, 14 Ga.App. 441, 81 S.E. 366; Counts v. State, 49 Tex. Cr. 329, 94 S.W. 220; Wong Goon Let v. United States, 245 F. 745, 158 C. C. A. 147; State v. Kimball, 74 Vt. 223, 52 A. 430.)

DUNN, J. Rice, C. J., and Budge, McCarthy and Lee, JJ., concur.

OPINION

DUNN, J.

The defendant was convicted in the district court of Canyon county of the crime of adultery. His motion for a new trial was denied and he has appealed from the order denying said motion, as well as from the judgment, but we cannot review this order in the absence of a bill of exceptions. ( State v. Park, 31 Idaho 694, 695, 175 P. 813, and cases cited.) The record shows no exception to the order of the court overruling defendant's demurrer to the information, nor to his motion to set it aside, nor to the refusal of his motion in arrest of judgment, so that these alleged errors are not properly before this court. (State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Maguire, 31 Idaho 24, 169 P. 175.)

We have examined the information and find that it charges a public offense.

Appellant assigns as error the refusal of the court to give certain instructions asked by him, but so far as these instructions contain correct propositions of law, they were fairly covered by the charge that was given by the court, and we find that the appellant was not prejudiced by the refusal of the court in this regard.

No exceptions appear to have been taken to the instructions given by the court on its own motion. In this state of the record these matters are therefore not before this court for review. (State v. Lundhigh, 30 Idaho 365, 164 P. 690, and cases there cited.)

Some time after the case was submitted to the jury they returned into court for the purpose of having some portions of the testimony reread to them, and at that time a conversation took place between the trial judge and members...