State v. Hunsaker

• Decision Date: 05 July 1923
• Citation: 37 Idaho 413,216 P. 721
• Parties: STATE, Respondent, v. JACK HUNSAKER, Appellant
• Court: Idaho Supreme Court

216 P. 721

37 Idaho 413

STATE, Respondent, v. JACK HUNSAKER, Appellant

Supreme Court of Idaho

July 5, 1923

MOTION FOR NEW TRIAL-WHEN FILING OF NOTICE OF INTENTION SUFFICIENT-MOTION TO DISMISS APPEAL AND STRIKE TRANSCRIPT DENIED-SALE OF INTOXICATING LIQUORS-WHEN EVIDENCE SUFFICIENT TO SUSTAIN CONVICTION.

1. Under C. S., sec. 9018, where a defendant serves and files a notice of intention to move for a new trial within ten days after the rendition of the verdict, which notice states the grounds upon which the application is based, and the trial court and counsel treat the same as an application for a new trial, a motion to dismiss the appeal on the ground that a former motion was not made within ten days will be denied.

2. A motion to dismiss the appeal from an order denying a new trial and to strike from the transcript all that part relating to said order will be denied where it appears that a notice of intention was filed within the time, and included the same grounds as the motion for new trial, and an exception was taken to the order denying such motion.

3. Error will not be presumed, but the record must affirmatively show that the error complained of was of a character sufficient to show that appellant was not given a fair trial.

4. The purpose of C. S., sec. 9191, is to admonish the courts in criminal procedure that errors or mistakes which do not tend to prejudice the substantial rights of the defendant should be disregarded.

5. Where on appeal from a judgment of conviction for an unlawful sale of intoxicating liquor, and also from the order denying the motion for a new trial, the record does not contain the evidence, but brief excerpts or partial statements in narrative form of what is claimed to be the substance of the evidence are set out in the bill of exceptions, this court will assume that such evidence was sufficient to support the verdict.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. James G. Gwinn, Judge.

Defendant was convicted of an unlawful sale of intoxicating liquors and appeals. Affirmed.

Judgment affirmed.

C. W Morrison, for Appellant.

The presumption being in favor of the regularity of the proceedings of the court below, error will not be presumed and must affirmatively appear by the record. (State v. Larkins, 5 Idaho 200, 47 P. 945; State v. Suttles, 13 Idaho 88; 88 P. 238; State v. O'Brien, 13 Idaho 112, 88 P. 425; Peters v. United States, 2 Okla. 116, 33 P. 1031; Dempsey v. United States, 2 Okla. 151, 44 P. 382; Murray v. Hauser, 21 Mont. 120, 53 P. 99.)

If the notice of motion states the grounds upon which a party thereafter will move the court for a new trial, and he after the statutory time moves for a new trial, without any objections made by the adverse party, and without misleading or prejudicing the rights of the adverse party in any respect whatever, the motion to dismiss the appeal will be denied.

"It makes no difference what a party litigant calls a paper or document he files in legal proceedings; the court will look to the purpose, effect and object of the document." (State v. Wright, 12 Idaho 212, 85 P. 493.)

C. S., sec. 9084, is applicable, not only against the defendant, but also against the state, when it urges a mere technical variance by the defendant from statutory requirements of practice, which appears neither to have misled nor prejudiced the rights of the state. (State v. Wright, supra.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

Application for a new trial must be made within ten days after verdict. (C. S., sec. 9018; State v. Dupuis, 7 Idaho 614, 65 P. 65; State v. Smith, 5 Idaho 291, 48 P. 1060; State v. Rice, 7 Idaho 762, 66 P. 87.)

A notice of intention to move for a new trial is not an application for a new trial. (State v. Smith, supra.)

An exception must be saved to any order denying a motion for new trial. (State v. Subisaretta, 33 Idaho 473, 195 P. 625.)

A bill of exceptions must be settled within the time prescribed by statute. (C. S., secs. 9007, 9010.)

In the absence of the evidence and where the indictment is sufficient to support the judgment, the court will assume that the evidence was sufficient to warrant the verdict and will further assume that the trial court's charge to the jury was pertinent to the facts proved on the trial. (People v. Williams, 2 Idaho 366, 16 P. 552; People v. Woods, 2 Idaho 364, 16 P. 551.)

Where an appeal is perfected by bill of exceptions this court will not consider the sufficiency of the evidence to sustain the verdict and judgment based thereon. (People v. Ah Hop, 1 Idaho 698; C. S., sec. 9011.)

WILLIAM A. LEE, J. McCarthy, Dunn and William E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--Appellant was charged by information with an unlawful sale of intoxicating liquors. After trial, on March 17, 1922, the jury returned a verdict of guilty as charged in the information, and upon this verdict he was sentenced to a term of imprisonment in the county jail and to pay a fine. On March 20th thereafter he served and filed notice of motion for a new trial, and on March 29th served and filed a motion for a new trial, which included and embraced the same grounds set forth in his notice of motion previously filed. No objection having been made to the motion for a new trial on account of it not having been filed in time, the same was thereafter denied, after a hearing wherein counsel for the state and for appellant participated. The trial judge certified that the motion was heard upon the minutes of the court, evidence produced at the trial, affidavits for and against the motion, bill of exceptions, notice of motion for new trial, and motion for new trial, all of which were submitted to the trial judge and by him used in said hearing.

The attorney general moves to dismiss the appeal from the order denying appellant's motion for a new trial, upon the grounds that it does not appear that an application for a new trial was made within ten days after the rendition of the verdict, or within any extension of the time given for the making of said application, and that no exception was taken to the order denying the motion for new trial. He also moves to strike from the transcript on appeal all that part of the same relating to the motion for a new trial, for the reason that no exception was taken to the order denying the motion; that no application for a new trial was made within ten days after the rendition of the verdict; and for the further reason that it does not appear from the record that the amended bill of exceptions was presented to the court for settlement or filed with the clerk within the time allowed or any extension thereof, and that said bill of exceptions does not comply with the statutes or rules of this court.

Counsel for the state argue at length that the motion to dismiss and to strike the transcript should be sustained, and refer to C S., sec. 9018, which provides that an application for a new trial must be made within ten days after the rendition of the verdict, unless the time has been extended, and cite in support of this contention State v. Smith, 5 Idaho 291, 48 P. 1060, State v. Dupuis, 7 Idaho 614, 65 P. 65, and State v. Rice, 7 Idaho 762, 66 P. 87, which appear upon a casual examination to support his contention. But counsel overlook the later case of State v. Wright, 12 Idaho 212, 85 P. 493, wherein R. S., sec. 7953, which is the same as C. S., sec. 9018, above referred to, is construed, and it is held that where a defendant files and serves his notice of intention to move for a new trial and states therein the grounds upon which his application is based, and the trial court and respective counsel treat such notice as an application for a new trial, this court will so treat it; and the appeal will not be dismissed upon the ground that a formal application has not been made. By reference to the record, it will be seen that paragraphs 2 to 12, inclusive, of appellant's notice of motion for a new trial are in all respects identical with paragraphs 1 to 11 of his motion for a new...