State v. Gawith

• Decision Date: 21 December 1896
• Citation: 47 P. 207,19 Mont. 48
• Parties: STATE v. GAWITH.
• Court: Montana Supreme Court

47 P. 207

19 Mont. 48

STATE v. GAWITH.

Supreme Court of Montana

December 21, 1896

Appeal from district court, Flathead county; Charles W. Pomeroy Judge.

Jesse Gawith was convicted of grand larceny, and appeals. Affirmed.

The defendant was convicted of grand larceny, and sentenced to the penitentiary by the district court of Flathead county on February 12, 1896. On February 17th he gave his notice of intention to move for a new trial, upon the grounds, among others, that the court erred "in refusing to instruct or advice the jury to acquit," and "that the verdict in said cause is contrary to the law and evidence." The notice stated that the motion would be made upon a bill of exceptions, to be thereafter submitted to and settled by the court, and upon the files and records and minutes of said court. The notice of intention to move for a new trial was duly served upon the county attorney on February 17, 1896. The record contains no proof of service upon the county attorney of the bill of exceptions, or of notice of the presentation of the bill of exceptions to the judge for settlement. On May 19, 1896, Judge Pomeroy certified that the bill of exceptions was settled and allowed. On June 23d the motion for a new trial was overruled, and on August 22d defendant's counsel duly gave notice of appeal from the judgment, and from the order denying defendant's motion for a new trial.

C. B Nolan, for appellant.

H. J Haskell, for the State.

HUNT J. (after stating the facts).

At the outset of this case the state objects to the consideration by this court of the bill of exceptions embodied in the transcript, because it does not appear by the record that the appellant ever notified the county attorney that he would present a bill of exceptions to the judge for settlement. The recitals and statements of record, by which, of course, we must determine whether the appellant power of this court is invoked, nowhere disclose that any notice of the presentation of a bill of exceptions to the judge for settlement was ever given to the county attorney; nor does it appear that the county attorney ever appeared to offer amendments for any purpose whatsoever connected with the settlement of any bill of exceptions, or in any manner knew of the existence of any such paper before appeal was taken or that he waived the notice required by the statute. The statute requiring a notice of at least two days to the county attorney of the presentation of the bill to the judge is mandatory. Notice is indispensable, and it must appear on the face of the record that this step has been taken. Railroad Co. v. Ditmars (Kan. App.) 42 P. 933. The statute provides one necessary way by which possible errors in the presentation of matter excepted to on the trial, and sought to be preserved for review by bill of exceptions, can be revised and made correct, which is by extending to the prosecuting officer an opportunity to examine the defendant's proposed bill of exceptions, that he may offer amendments to the same. McKay v. Railway Co., 13 Mont. 15, 31 P. 999. To deny him this opportunity is to ignore the law, and that he has had this opportunity this court can only be advised by an affirmative showing by the record. This must be so, for the reason that, if the county attorney has had no notice of the bill of exceptions, he has had no chance to object thereto, and matter may thus have been incorporated in the bill as settled by the judge which had no proper place therein, and which would not have been allowed had the county attorney had the statutory opportunity to call the judge's attention to errors or defects in the proposed bill. In State v. Hinchey, 5 Wash. 326, 31 P. 870, this exact question was raised, and the court said: "The respondent also moves the court to strike the bill of exceptions from the files on the ground that no notice of the settlement thereof was served upon the respondent, as required by law. And, as the record is silent as to notice, there is nothing before us to show that the court had jurisdiction to settle the same." The following cases are also in point, and hold that the record should show that the bill of exceptions was served, or notice of the presentation of the same for settlement must be given to the opposite party or his counsel: Snead v. Tietjen (Ariz.) 24 P. 324; People v. Hill, 78 Cal. 405, 20 P. 862; Coleman v. Ransom, 45 Ga. 316; Arnett v. Gurley, 59 Ga. 666; Akerman v. Neel, 70 Ga. 728; 3 Enc. Pl. & Prac. pp. 444-446. The bill of exceptions which contains the evidence cannot, therefore, be considered. On the appeal from the judgment we cannot consider the alleged error of ...