State v. Ricks

• Decision Date: 01 July 1921
• Citation: 34 Idaho 122,201 P. 827
• Parties: STATE, Respondent, v. HENRY RICKS and EDWARD LEVINE, Appellants
• Court: Idaho Supreme Court

201 P. 827

34 Idaho 122

STATE, Respondent, v. HENRY RICKS and EDWARD LEVINE, Appellants

Supreme Court of Idaho

July 1, 1921

APPEAL-MOTION TO DISMISS-CRIMINAL CASE-INABILITY TO FURNISH REPORTER'S TRANSCRIPT-BILL OF EXCEPTIONS-STATUTORY METHOD OF APPEAL-JUDGMENT-PRESUMPTION OF VALIDITY-RECORD-ERROR-SHOWING-GRANT OF NEW TRIAL BY THIS COURT DEPENDENT ON REVERSAL.

1. Under C. S., secs. 9079 and 9013, lapse of time in filing a transcript on appeal in a criminal case is not jurisdictional, and it rests in the discretion of the court to dismiss the appeal or enlarge the time for filing the transcript.

2. Where it is impossible to procure a reporter's transcript, and the clerk of the district court has furnished a clerk's transcript, lacking that of the reporter, a motion to dismiss will be denied, and the appeal heard on such record as is before the court.

3. Questions raised by motions to quash the information and in arrest of judgment will not be reviewed by this court unless presented by a bill of exceptions.

4. The right of appeal can be exercised only by the method and in the manner provided by statute.

5. The power of this court to grant a new trial depends upon a reversal of the judgment.

6. The judgment of the trial court is presumed valid in the absence of a showing to the contrary.

7. This court cannot reverse the judgment of the trial court unless error calling for a reversal is shown in the record.

8. The fact that the death of the court reporter and subsequent loss of his notes make it impossible to procure his transcript of the proceedings on the trial is not ground for reversing the judgment.

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

Defendants were convicted of the crime of rape. Affirmed.

Affirmed.

Miller & Ricks, for Appellants.

That no transcript on appeal was served or filed in this court within six months after perfecting of the appeal is not ground for dismissal of the appeal. (Scott v. Madarica, 32 Idaho 756, 188 P. 37; Welch v. Spokane Int. R. Co., 32 Idaho 668, 186 P. 915.)

A party or his attorney is justified in relying upon the stenographic reporter for a transcript of the oral proceedings of a trial. (State v. Ricks, 32 Idaho 232, 180 P. 257, 13 A. L R. 99; Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762; Richardson v. State, 15 Wyo. 465, 12 Ann. Cas. 1048 89 P. 1027; Watt v. State, 16 Okla. Cr. 352, 183 P. 512.)

Where the record, or a material part thereof, without which the errors assigned cannot be passed upon, has been lost or destroyed, without possibility of substitution, through no fault or neglect on the part of the appellants or their counsel, or by reason of some accident or act of Providence for which no one is responsible, the court will order a new trial of the case. (C. S., secs. 6556-6559, 6562, 9013; Hamilton v. McCulloch, 9 N.C. (2 Hawks) 29; State v. Huggins, 126 N.C. 1055, 35 S.E. 606; Tucker v. Tucker, 26 Mich. 443; People v Judge, 41 Mich. 726, 49 N.W. 925; State v Bess, 31 La. Ann. 191; Henrichsen v. Smith, 29 Ore. 475, 42 P. 486, 44 P. 496; Trammell v. State, 1 Tex. App. 121; Barr v. State, 62 Tex. Cr. 58, 136 S.W. 454; Hume v. Bowie, 148 U.S. 245, 13 S.Ct. 582, 37 L.Ed. 438; Malony v. Adsit, 175 U.S. 281, 20 S.Ct. 115, 44 L.Ed. 163; Nelson v. Marshall, 77 Vt. 44, 58 A. 793; Woods v. Beaton, 1 Alaska, 344; Id., 2 Alaska, 1; Richardson v. State, supra; Martin v. Blackwell, 90 S.C. 351, 73 S.E. 629; Bailey v. United States, 3 Okla. Cr. 175, 104 P. 917, 25 L. R. A., N. S., 860; Tegler v. State, 3 Okla. Cr. 595, 139 Am. St. 976, 107 P. 949; Elliott v. State, 5 Okla. Cr. 63, 113 P. 213; Bates Street Shirt Co. v. Place, 76 N.H. 569, 78 A. 928; Holland v. Chicago, B. & Q. R. Co., 52 Neb. 100, 71 N.W. 989; Downing v. Gaslin, 32 Neb. 291, 49 N.W. 353.)

The right of appeal in this state, since it is both constitutional and statutory, is essential to due process of law, and an affirmance of the judgment in this case will be a deprivation of appellants' constitutional and statutory right of appeal and a denial of the equal protection of the laws. (Idaho Const., art. 1, sec. 13; U. S. Const., 5th and 14th Amendments; In re Chase, 20 Idaho 128, 116 P. 1037; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Burton v. Platter, 53 F. 901, 4 C. C. A. 95.)

Where the constitution creates a court of general appellate jurisdiction and provides that appeal may be taken thereto, the right of review is a constitutional right which cannot be taken away by the legislature. (Simpson v. Simpson, 25 Ark. 487; Ex parte Anthony, 5 Ark. 358; Peake v. People, 76 Ill. 289; St. Louis & Southeastern Ry. Co. v. Lux, 63 Ill. 523.)

A new trial should be granted in order to make the constitutional guaranteed right of appeal available. (State v. Ricks, supra; Fischer v. Davis, 24 Idaho 216, 133 P. 910; In re Neil, 12 Idaho 749, 87 P. 881.)

The right of appeal in this state is both procedural and substantive. The death of the court reporter in the instant case has affected nothing but the procedural right. The legislature, looking forward to just such a contingency as the present one, has provided for it. (C. S., sec. 6511; Fox v. Flynn, 27 Idaho 580, 150 P. 44.)

When jurisdiction is conferred upon a court by the constitution, there is also conferred, as an incident of such grant, the power to make the same effective by any suitable process or mode of procedure which may be adopted or recognized. (McDougall v. Sheridan, 23 Idaho 191, 128 P. 954; 12 Cyc. 861; 17 C. J. 163; 20 R. C. L. 288; 2 R. C. L. 268; 21 Ann. Cas. 262, note; Ruston v. State, 15 Tex. App. 336; Babb v. State, 8 Tex. App. 173; Henderson v. State, 20 Tex. App. 304; Gaiter v. State, 45 Miss. 441; State v. Bess, 31 La. Ann. 191; State v. Weiskittle, 61 Md. 48; People v. Judge, 40 Mich. 630; People v. Judge, 41 Mich. 726, 49 N.W. 925; State v. Wilson, 200 Mo. 23, 98 S.W. 68; State v. Eaton, 191 Mo. 151, 89 S.W. 949; 20 Standard Proc. 512, notes 32 and 39.)

The above cases were all criminal cases, and, so far as we have been able to ascertain, there was no established procedure laid down by statute in any of them, and the courts there adopted the rule which we have asked this court to adopt and grant a new trial.

"Where by reason of a loss of the record the appellant is unable by no fault of his to perfect his appeal, he will be excused from producing the transcript and the judgment will be reversed." (12 Cyc. 861; 17 C. J. 163; State v. Doerries, 168 Mo.App. 324, 153 S.W. 1062; State v. McCarver, 113 Mo. 602, 20 S.W. 1058; King v. State, 59 Tex. Cr. 511, 129 S.W. 626; Evans v. State, 84 Tex. Cr. 577, 209 S.W. 147; Lamm v. State, 4 Okla. Cr. 641, 111 P. 1002; State v. Reed, 67 Mo. 36.)

The court is admonished on appeal to disregard defects in procedure. (C. S., sec. 9084; State v. McBride, 33 Idaho 124, 190 P. 247.)

Where it appears that the record or a material part thereof, without which the errors assigned cannot be passed upon, has been lost or destroyed, without possibility of substitution, through no fault or negligence of appellant or his counsel, but by reason of some accident or act of Providence, prejudice should be presumed. (Zweibel v. Caldwell, 72 Neb. 47, 99 N.W. 843, 102 N.W. 84.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

"There being no transcript on file and counsel for appellant offering no transcript certified and served as required by the statute and the rules of this court, there is no case here for review and consideration and the appeal will be dismissed." (State v. Squires, 15 Idaho 327, 97 P. 411.)

Appellants' right of appeal is a right to prosecute the same according to the reasonable rules and regulations imposed by legislative authority.

"If the failure is caused by unavoidable casualty, the party thus handicapped suffers a misfortune, but no wrong for which either constitution or statute provides a remedy." (Dumbarton Realty Co. v. Erickson, 143 Iowa 677, 136 Am. St. 778, 21 Ann. Cas. 258, 120 N.W. 1025; Ross v. Leader (Iowa), 122 N.W. 812; Bingham v. Clark, 178 Iowa 1129, 159 N.W. 172.)

On the appellant rests the duty of supplying this record in order that the supreme court may review the same. Why should this duty be saddled upon the state, which prevailed below? (State v. Cantrell, 279 Mo. 569, 216 S.W. 48; People v. Botkin, 9 Cal.App. 244, 98 P. 861.)

In view of the admitted condition of the record, the appellate court, in the absence of a showing in the record to the contrary, will indulge all reasonable presumption in favor of the judgments or rulings of the trial court (17 C. J., sec. 3560, p. 213; People v. White (Cal. App.), 190 P. 821; State v. Schoenborn, 55 Mont. 517, 179 P. 294; Thomas v. State (Okla. Cr.), 190 P. 711), and will presume that the progress of the cause in the court below was regular and free from error. (17 C. J., sec. 3560, p. 214; People v. Woods, 2 Idaho 364, 16 P. 551; People v. Williams, 2 Idaho 366, 16 P. 552; State v. Watkins, 7 Idaho 35, 59 P. 1106; State v. Suttles, 13 Idaho 88, 88 P. 238; State v. O'Brien, 13 Idaho 112, 88 P. 425; State v. Lottridge, 29 Idaho 53, 155 P. 487; Pilgrim v. State, 87 Tex. Cr. 6, 219 S.W. 451; Brown v. State (Okla. Cr.), 194 P. 272; Agent v. State (Okla. Cr.), 194 P. 233; Williams v. State (Okla. Cr.), 190 P. 892; People v. Airola (Cal. App.), 188 P. 817; People v. White (Cal. App.), 190 P. 821.)

In order to overcome such presumption, error must be affirmatively shown by the record. (17 C. J., sec. 3560, p 215; State v. Haverly, 4 Idaho 484, 42 P. 506; State v. Schoenborn, supra; Cohen v. People, 68 Colo. 10, 189 P. 13); and the burden of so showing it is on the party complaining of the error. (17 C. J., sec....