State v. Sawyer

• Citation: 54 Utah 275,182 P. 206
• Decision Date: 03 April 1919
• Docket Number: 3296
• Court: Utah Supreme Court
• Parties: STATE v. SAWYER

182 P. 206

54 Utah 275

STATE v. SAWYER

No. 3296

Supreme Court of Utah

April 3, 1919

On Application for Rehearing July 8, 1919.

Appeal from District Court, Fifth District, Iron County; D. H Morris, Judge.

William H. Sawyer was convicted of grand larceny, and he appeals.

AFFIRMED.

Edmund H. Ryan, of Cedar City, for appellant.

Dan B Shields, Atty. Gen., and O. C. Dalby and Herbert Van Dam Jr., Asst. Attys. Gen., all of Salt Lake, for the State.

CORFMAN, C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

The defendant, William H. Sawyer, was convicted of the crime of grand larceny, May 17, 1918, in the district court for Iron county, and was by that court sentenced to a term of imprisonment on September 21, 1918. He appeals from the judgment.

The Attorney General contends that the appeal should be dismissed, and has interposed a motion for dismissal upon the following grounds: (1) That the district court exceeded its jurisdiction in extending time in which to prepare, serve, and file motion for new trial; (2) that motion for new trial was not filed within the time allowed by the district court; (3) that notice of appeal was not filed in time allowed by law.

On the same day, after rendition of the verdict, defendant applied for and was by the trial court given sixty days to prepare, serve, and file a motion for a new trial. The motion for new trial was not served until July 12, 1918, nor filed until July 18, 1918, more than sixty days after rendition of the verdict of conviction.

Comp. Laws Utah 1917, section 9200, among other things not mentioned here, provides:

"The application for a new trial must be made upon written notice of motion designating the grounds upon which it is made, and must be served and filed within five days after the rendition of the verdict."

It is apparent that defendant did not conform with the order of the court extending to him sixty days in which to prepare, serve, and file his motion. Further, the order of the court extending the time for defendant to move for new trial beyond the five-day period applicable here gives rise to the question whether or not the court did not exceed its jurisdiction. The state contends that the provision of the statute is mandatory, that the court had no discretionary power, and that it exceeded its jurisdiction in granting the defendant additional time to move for a new trial. So far as we are able to ascertain, the question has not heretofore been raised in this jurisdiction under criminal procedure. Under our civil procedure the statutes (Comp. Laws 1917, sections 6619, 7023) expressly provide that the district courts have the discretionary power to allow a motion for a new trial to be made and filed after the time limited by the Code upon application and a proper showing, but no like provision is to be found under our Penal Code, nor in the statutes with reference to criminal procedure.

Under our Code of Criminal Procedure it is provided by Comp. Laws 1917, section 8547, that "the procedure in criminal cases in the courts of this state shall be as prescribed in this Code," and while it is true that it is provided by Comp. Laws 1917, section 7892, that the rule of the common law that penal statutes are to be strictly construed has no application to our statutes, and that our statutes are to be more liberally construed with a view of effecting their objects and to promote justice, still, we think, in the absence of some express provision in the Code of Criminal Procedure to the effect that the courts may exercise some discretionary power in extending the time within which a notice of motion for new trial may be made, the strict letter of the statute must be adhered to, and therefore it is beyond the power of the courts to extend the time limited by section 9200, supra. We think that not only the best interests of the criminally accused but of society and the state demand prompt attention to criminal procedure and final and effective determination of the cases in which parties are charged with crime. Under our statutes, in criminal cases, the grounds upon which a new trial may be applied for are clearly expressed, and we cannot conceive how in any case the interests of the accused and complete justice will not be best subserved by requiring him to act within the time expressly limited by the statute. Davis v. State, 31 Neb. 240, 47 N.W. 851; Hubbard v. State, 72 Neb. 62, 100 N.W. 153, 9 Ann. Cas. 1034; Ward v. State, 171 Ind. 565, 86 N.E. 994; State v. Maddox, 153 Mo. 471, 55 S.W. 72; State v. Tolla, 73 N.J.L. 249, 63 A. 338; State v. Hayden, 131 Iowa 1, 107 N.W. 929.

However, the state's motion to dismiss the appeal must be denied. The record shows that while the verdict of conviction by the jury was rendered May 17, 1918, the judgment upon the verdict was not rendered and entered until September 21, 1918. On the same day, September 21, 1918, the defendant served and filed his notice of appeal to this court. As provided by Comp. Laws 1917, section 9209:

"All appeals in criminal cases must be taken within two months after the entry of the judgment appealed from."

Therefore this appeal was taken in time.

As to the merits of the appeal: It is first contended by the defendant that the evidence is insufficient to sustain the verdict.

The testimony shows that the defendant, a resident of Cedar City, Utah, for about twenty-five years previous to the offense charged had been engaged in farming and stock raising. He had ranged his stock on what is known as the Cedar Bottoms in the winter time and on the Cedar Mountains in the summer time. He owned two ranches, one on the Cedar Bottoms, and one on the Cedar Mountains, and moved his stock from ranch to ranch for the purpose of feeding and grazing them. The complaining witness, Hugh L. Adams, also owned a ranch at Cedar Bottoms adjoining the defendant's ranch. Witnesses for the defendant testified that in the spring of 1915 a bull calf was born from one of defendant's cows at his Cedar Bottoms ranch; that it was kept there and was neither branded nor marked. Later this calf, after being kept for a while for stock-breeding purposes, was castrated and turned out on the open range. The testimony further shows that the defendant, on about November 17, 1917, notified the sheriff of Iron county of his intention of driving his stock into Nevada for the purpose of grazing them there, and for that reason requested the sheriff to make an inspection so that his animals might be driven out of Utah after due inspection as required by law. The sheriff, on inspecting defendant's stock for that purpose, discovered that the animal in question was not branded, bore earmarks not claimed by defendant, and therefore ordered the defendant not to remove it until further investigation could be made. The attention of Mr. Adams, the complaining witness before the magistrate, was called to the animal, and he made claim that the animal had been stolen, and that it belonged to him. At the trial much testimony of a conflicting nature was given as to the identity and the ownership of the animal. The witnesses for the defendant testified that they were acquainted with it, and that it was owned by the defendant. The witnesses for the state, directly to the contrary, testified it was owned by Adams. The jury were permitted, under the instructions of the court, to view the animal. After doing so and considering the testimony, by their verdict they evidently believed the state's witnesses. We have no power to disturb their finding in that regard even were we disposed to do so. As we view the testimony, the contention made that the evidence is insufficient to justify the verdict is wholly untenable.

The defendant next complains that the trial court committed errors in the admission and exclusion of testimony over defendant's objections. Many of the assignments made by the defendant are wholly without merit, and we deem it unnecessary to discuss them. Counsel for defendant suggests in his printed brief and argument that they may be grouped in one discussion, and then proceeds to argue that the trial court committed error in the exclusion of certain testimony tending to show that the intent of defendant in claiming possession and ownership of the animal in question was under a bona fide claim of right and without any intent to steal the animal. In the course of the trial the following questions were propounded to the defendant in that regard:

"Q. Did you on that occasion when Mr. Fife (the sheriff) came there, on the Antelope road, to inspect your cattle--did you make any effort to rush the cattle by or crowd them by rapidly, so as to prevent a full opportunity, his opportunity to inspect them?"

"Q. Did you honestly believe that stag to be your property and your animal that you raised as you testified?"

"Q. Did you honestly believe that stag at that time to be your property? And do you yet honestly--do you still honestly believe that to be your property and your steer?"

The first question above was objected to by the state on the ground that it was leading and suggestive, and each of the other questions on the ground that they were self-serving declarations. The objections were sustained by the court, and the defendant was not permitted to answer.

We think the trial court's refusal to permit the defendant to testify as to his intent and belief in possessing and claiming the animal in question was clearly error. Under the facts and circumstances as shown by this record the defendant should have been permitted to testify that he believed the animal he was accused of feloniously stealing and taking away was his property and his possession a rightful one.

Under our Penal Code (Comp. Laws 1917,...