State v. Howard

• Decision Date: 29 October 1896
• Parties: STATE v. HOWARD ET AL.
• Court: Washington Supreme Court

46 P. 650

15 Wash. 425

STATE v. HOWARD ET AL.

Supreme Court of Washington

October 29, 1896

Appeal from superior court, Douglas county; Wallace Mount, Judge.

Lee Howard and Robert Owens were convicted of horse stealing, and appeal from the judgment and sentence. Affirmed.

W. J Canton, for appellants.

M. B Malloy, for the State.

PER CURIAM.

The appellants have appealed from the judgment and sentence of the superior court of Douglas county, entered upon a verdict of the jury finding them guilty of the crime of horse stealing. Counsel for the state have moved the court to strike from the transcript what purports to be a bill of exceptions, for the reason that no notice of the statement of the same was ever given or served as required by law. The motion must be granted. Section 9 of the act of March 8, 1893 (Sess. Laws, p. 114), requires a party desiring to have a bill of exceptions or statement of facts certified to prepare the same as proposed by him, file it in the cause, and serve a copy thereof upon the adverse party, and to give such opposite party not less than three nor more than ten days' notice of the time when and where he will apply to the trial judge to have such bill of exceptions or statement of facts settled and certified. No notice of any kind or character appears to have been given in this case. It follows that the purported bill or statement must be stricken.

A further motion is made to strike from the transcript what purport to be copies of the motion and affidavit for continuance, also certain purported statements of the prosecuting attorney to the jury, and certain papers purporting to have been used upon a motion for a new trial for the reason that they have not been preserved or made part of the record in the cause by any bill of exceptions or statement of facts, and this motion must also be granted. Such papers, unless authenticated by the certificate of the trial judge, and brought into the record upon proper bill of exceptions or statement of facts settled upon notice, cannot be considered, because in no other way can it be determined that they formed any part of the proceedings below, or that the attention of the trial court was ever directed to them. Clay v. Irrigation Co. (Wash.) 45 P. 141. It is not enough that such papers had been filed by counsel with the clerk of the superior court. It does not follow from such findings that the court's attention had been directed...