State v. McNichols

• Court: Idaho Supreme Court
• Writing for the Court: MORGAN, J.
• Citation: State v. McNichols, 62 Idaho 616, 115 P.2d 104 (Idaho 1941)
• Decision Date: 25 June 1941
• Docket Number: 6911
• Parties: STATE, Appellant, v. JAMES E. McNICHOLS, Respondent

115 P.2d 104

62 Idaho 616

STATE, Appellant, v. JAMES E. McNICHOLS, Respondent

No. 6911

Supreme Court of Idaho

June 25, 1941

JUDGMENTS-HOW EXPRESSED-FINALITY OF-APPEAL AND ERROR-APPEALABLE ORDERS-VOID ORDERS-CONTEMPT OF COURT-EVIDENCE-EXHIBITS-JURISDICTION TO ORDER RETURN OF-CONTESTED MOTIONS-TRANSCRIPTS ON APPEAL-CERTIFICATE AS TO PAPERS USED.

1. A "judgment" is the final determination of the rights of the parties in an action or proceeding. (I. C. A., secs 7-701, 19-2704.)

2. Whether a document expressing the action of a court is an "order" or a "judgment" is to be determined, not by its title, but by its contents. (I. C. A secs. 7-701, 19-2704.)

3. It is essential that a judgment of dismissal of a criminal action be made a matter of record either by being entered in clerk's minutes of the court's proceedings or by being signed by the judge and filed with the clerk.

4. On appeal of criminal case from a probate judge or justice of the peace to district court, there is no provision for remittitur to probate judge or justice of the peace. (I. C A., sec. 19-4042.)

5. Defendant's motion to dismiss his appeal to district court from conviction in probate court had the effect of a plea of guilty, and the order of dismissal amounted to a "judgment" that defendant pay the fine imposed and costs assessed in probate court, though district judge might have required defendant to plead to the complaint and might have imposed a penalty other than that fixed by probate judge. (I. C. A., secs. 7-701, 19-2704.)

6. An order dismissing appeal in criminal case to district court from probate court, on defendant's motion, was a final determination of the rights of the parties, and was a "judgment" within terms of statute authorizing appeal by state from order "made after judgment." (I. C. A., secs. 7-701, 19-2704.)

7. An order holding that money confiscated in a raid of gambling premises and forfeited to the state was the property of the person from whom it was seized, and directing that such money be returned to him, was appealable as "affecting the substantial rights" of the state. (I. C. A., sec 19-2704.)

8. Violation of an order which is void because of lack of jurisdiction of the court to make it is not "contempt of court," and no one is under compulsion to obey it.

9. When a criminal case has been finally disposed of and money held as evidence therein is in custody of an officer of the court, court has jurisdiction to enter an order directing that it be returned to its owner.

10. Whether money seized in raid on alleged gambling premises and used as evidence in prosecution was merely held as evidence and no longer necessary for that purpose, so that trial court could order it to be returned to its owner, or whether it had been forfeited or was subject to forfeiture to the state, was not a proper question for decision on motion to dismiss state's appeal from order directing its return.

11. A certificate as to papers contained in a transcript on appeal, and as to what papers, records or files were submitted to the judge and used by him on hearing of the motion, may be signed by the judge, the clerk or the attorneys for the parties, and certificate by clerk of court was sufficient. (Supreme Court Rules, rule 23.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A judgment is a final determination of the rights of the parties in an action or proceeding.

II. Whether a document expressing the action of a court is an order or a judgment is to be determined, not by its title, but by its contents.

III. It is essential that a judgment of dismissal of a criminal action be made a matter of record, either by being entered in the minutes of the proceedings of the court, kept by the clerk, or by being signed by the judge and filed with the clerk.

IV. When a criminal case has been appealed to a district court, an order there made dismissing it is a final determination of the rights of the parties to the action, and is a judgment within the meaning of I. C. A., sec. 19-2704, subsec. 4.

V. If money, confiscated in a raid of premises where gambling is conducted in violation of law, is forfeited to, and has become the property of the state, an order holding it was the property of the one from whom it was seized, and directing it be returned to him, affects the state's substantial rights and is an appealable order within the meaning of I. C. A., sec. 19-2704, subsec. 4.

VI. Violation of an order which is void because of lack of jurisdiction of the court to make it is not contempt of court, and no one is under compulsion to obey it.

VII. When a case has been finally disposed of and money which has been held as evidence therein is in custody of an officer of the court, the court has jurisdiction to enter an order directing that it be returned to its owner.

VIII. A certificate as to papers contained in a transcript, and as to what papers, records or files were submitted to the judge and by him used on the hearing of a motion, may be signed by the judge, the clerk, or the attorneys for the parties litigant.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

From his conviction in the probate court of a misdemeanor, defendant appealed to the district court. There, on his motion, judgment dismissing his appeal was entered. From an order made after that judgment, to the effect that money belonging to him, and held as evidence in the case, be returned to him, the state appealed. Respondent has moved to dismiss the appeal. Motion overruled.

Motion to dismiss the appeal overruled.

Bert H. Miller, Attorney General, C. M. Jeffery, Prosecuting Attorney, Bannock County, and Carl C. Christensen, for Appellant.

The Order of the District Court from which the State has appealed is an order which substantially affects the rights of the prosecution, because it aids the respondent in reaping the fruits of the crime of which he was convicted, and robs the State of money confiscated as part of gambling devices and which should be turned over to the permanent school fund and, for these reasons, is an appealable order. (I. C. A., sec. 19-2704, subdiv. 4; Dorrell v. Clark, (Mont.) 4 P.2d 712; Asher v. Johnson, (Cal.) 79 P.2d 457, p. 463; I. C. A., sec. 19-4802.)

The order appealed from was made and entered in the District Court and was, therefore, subject to be appealed from by the State. (I. C. A., sec. 19-2701.)

The file in this case being in the District Court by reason of the defendant's appeal to said Court, and the order appealed from to this Court having been made in the District Court on the contested motion also made in the District Court, the Clerk of the District Court was a proper person to sign the certificate appearing in the transcript, as required by Rule 23 of the Supreme Court of Idaho. (Rule 23 of the Supreme Court of Idaho.)

B. W. Davis, for Respondent.

An order of the District Court providing for the return of an exhibit to the defendant in a criminal case, is not an appealable order. (I. C. A., sec. 19-2704, subdiv. 4; State v. Grady, 31 Idaho 272; State v. Ridenbaugh, 5 Idaho 710; Penal Code of California, sec. 1238, subdiv. 5, Kerr's Cyc. Codes.)

The State cannot appeal in criminal cases upon questions of law, except from judgments or orders made and entered in the District Court. (I. C. A., sec. 19-2701.)

The Clerk of the District Court had no authority to certify to a transcript of a record in the Probate Court. After a motion to dismiss the appeal was granted, the District Court and the Clerk thereof, lost any and all jurisdiction, and a certificate of the Clerk to papers not legally on file has no validity or effect. (State v. Trathen, 6 P.2d 150; Blandy v. Modern Box Mfg. Co., 40 Idaho 356.)

MORGAN, J. Holden and Ailshie, JJ., concur. Givens, J., concurs in the conclusion. BUDGE, C. J. (Dissenting).

OPINION

MORGAN, J.

May 3, 1940, by authority of a search warrant, issued by a justice of the peace of Bannock County, a search of respondent's premises, known as the Shamrock Club, was made and there were seized and taken into possession of the sheriff, six slot machines and a roulette table, which contained $ 256. May 7, 1940, respondent was charged, in the justice's court, of having played and conducted games of chance, in a house owned by him, in violation of the law making gambling a misdemeanor. He procured a change of venue to the Probate Court of Bannock County, where the case was tried to a jury, which rendered a verdict of guilty. July 8, 1940, the probate judge entered judgment that respondent pay a fine of $ 200 and costs. July 16, 1940, he appealed to the district court from the judgment of conviction. The following record of proceedings in the district court appears in the transcript:

"TITLE OF COURT AND CAUSE.

MINUTE ENTRY.

"The defendant came into court by and through his counsel, B. W. Davis, and moved to dismiss the appeal herein, and the motion was, by the court, granted.

Minute Book 21, page 551

Nov. 29, 1940"

December 3, 1940, respondent filed a motion for an order requiring the return to him of the money taken from the slot machines and roulette table, which motion contained the following:

"That the sum of Two Hundred Fifty Six ($ 256.00) in silver, lawful money of the United States, the property of the defendant herein, the same having been used as and introduced in evidence in the above entitled cause, be returned to the defendant herein and that a proper order be made for the return thereof;

"And it is respectfully shown to the Court that the records and files herein discloses that said cause has been finally disposed of; that there is no further...