State v. Francis
| Decision Date | 13 December 1920 |
| Docket Number | 4474. |
| Citation | 194 P. 304,58 Mont. 659 |
| Parties | STATE v. FRANCIS. |
| Court | Montana Supreme Court |
Appeal from District Court, Hill County; W. B. Rhoades, Judge.
George Francis was convicted of grand larceny, and he appeals. Affirmed.
J. P Donnelly, of Havre, and O. W. McConnell, of Helena, for appellant.
S. C Ford, Atty. Gen., and A. A. Grorud, Asst. Atty. Gen., for the State.
On February 28, 1918, George Francis was found guilty of the crime of grand larceny. The trial court thereupon set March 4, at the hour of 9:30 a. m., as the time for pronouncement of judgment on the verdict, permitting the defendant to remain at large under his bail of $2,000 theretofore given. On March 1, 1918, through his attorneys, defendant served and filed notice of motion for a new trial. At the time appointed the court convened and continued the matter of pronouncement of judgment until March 6, 1918, and allowed the defendant 30 days' additional time "for filing bill of exceptions and filing notice of motion for a new trial." The court thereupon required the defendant to furnish an aditional bail bond in the sum of $5,000 before 3 p. m. of the same day, at which hour, the bond not having been filed, the court issued a bench warrant for the defendant. It was then discovered that the defendant could not be found. On March 6 the court made a minute entry to the effect that the defendant was called and failed to appear and his bail in the sum of $2,000 is therefore forfeited.
No further proceedings were had in the case until July 8, 1919, when the court made and filed the following order:
"Whereas the defendant, George Francis, has failed to come into court for the pronouncement of judgment upon the verdict of the jury rendered in this case, and has failed to render himself in execution thereof, the defendant's bail in the sum of $2,000 has been ordered forfeited.
It is ordered that the official reporter of this court be and he is hereby directed not to furnish a transcript of the evidence in this case to any one, and all further proceedings in this case are stayed until the defendant renders himself in execution of judgment.
On the same day the defendant surrendered himself to custody, and the court pronounced judgment sentencing him to from 6 to 12 years in the state penitentiary.
On July 17, pursuant to the nunc pro tunc order, defendant's draft of a bill of exceptions was served and numerous affidavits in support of the motion for a new trial were filed. No new notice of motion was filed, the defendant relying on his notice of March 1, 1918. The bill of exceptions was later, over the objection of the state, settled and allowed, and the motion submitted and denied. The appeal is from the judgment and from the court's order denying defendant's motion for a new trial.
1. The defendant's right to move for a new trial is dependent upon the validity of the nunc pro tunc order, for, in its absence, the time in which defendant could perfect such a motion had long since expired.
"Nunc pro tunc" means, literally, "now for then," and a valid nunc pro tunc order is one which, for some good reason, should have been made at an earlier date, and which, therefore, the court may cause to take effect as of the date when it should have been made. The circumstances under which this may be done in this jurisdiction are concisely stated in Power v. Lenoir, 22 Mont. 169, 56 P. 106, as follows:
In the case of Security Trust & Savings Bank v. Reser, 58 Mont. 501, 193 P. 532, decided November 15, 1920, this court held that where a judgment should have been entered at a date certain, and the court failed to do so, a nunc pro tunc judgment should be entered as of such date, for the failure was not imputable to negligence on the part of the plaintiff.
It has been repeatedly held that, where it appears on appeal that the defendant is a fugitive from justice, the appeal will be dismissed. 3 Ann. Cas. page 512, Note. The reason assigned generally for such action is that, by voluntarily failing to appear and assert his rights under the Constitution, the defendant is deemed to have waived those rights. Commonwealth v. Andrews, 97 Mass. 543. This court has, however, declared on the subject as follows:
State v. Dempsey, 26 Mont. 504, 68 P. 1114.
In the case of People v. Genet, 59 N.Y. 80, 17 Am. Rep. 315, cited in the Dempsey Case, the court held, in refusing a writ of mandate to compel the settlement of a bill of exceptions, that--
"When a person charged with felony has escaped out of custody, * * * the courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent of" such person.
It would seem, then, that, had counsel for defendant sought to have a bill of exceptions on motion for a new trial settled and to file affidavits in support of the motion, the court would have been justified in refusing to proceed; in fact, it would have been the court's duty to so dispose of the application and to strike from the files the affidavits. However, by analogy with the rule laid down in the Dempsey Case, the court might, while the matter was thus before it, have made such an order as that of July 8, on condition that the defendant should, within a reasonable time fixed in the order, return to the jurisdiction and surrender himself to custody, as was done in that case. But nowhere in the order of July 8 does it appear that such an order was made on March 6, 1918, or that the so-called nunc pro tunc order was to take the place of an order which should have been entered in the minutes of that date. In fact, the minute entries negative any such idea. In the absence of any steps taken by counsel, the court should presume that, the defendant having fled the jurisdiction of the court, he and his counsel had abandoned his motion for a new trial.
The situation in which the defendant found himself on July 8, 1919, was brought about solely by his own wrongful, voluntary, and contemptuous act in defying the authority of the court; it cannot by any stretch of the imagination be said to have resulted from any dereliction on the part of the court, nor can it be said that relief was then necessary to prevent injustice being done. To allow the defendant at that late date to evade the consequences of his own wrongful act would be tantamount to permitting him to take advantage of his own wrong in violation of section 6185 of the Revised Codes.
Even if we were to resort to the fiction that the order was made on March 6, 1918, but "by reason of some misprision" did not appear in the minutes of that date, the court would stultify itself by the tacit holding that 16 months was a reasonable time in which the defendant might purge himself of contempt by returning.
It is therefore clear that no error was committed in denying the motion for a new trial, as there was no proper motion before the court.
2. However, the bill of exceptions was before the court for such purposes as it may be used on an appeal from the judgment, for section 9340, Revised Codes, provides for the presentation of a draft of a bill of exceptions, on 2 days' notice to the county attorney, within 10 days after judgment, and this provision was complied with.
This section is carried forward from the Annotated Codes of 1895, where it bore the number 2321, which section was interpreted, in State v. O'Brien, 18 Mont. 1, 43 P. 1091, 44 P. 399, to permit the defendant to bring before the court on an appeal from the judgment alone, by bill of exceptions, errors in the decision of questions of law arising during the course of the trial, exclusive of those errors which "are embraced within any of the provisions of the law made for granting new trials." Applying the rule thus laid down, we have presented for our consideration the following specifications of error:
(a) The court erred in refusing to instruct on the law of...
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