State v. Siepert

• Decision Date: 30 October 1923
• Parties: STATE, Respondent, v. THOMAS SIEPERT, THOMAS BROWN and ALBERT BROWN, Appellants
• Court: Idaho Supreme Court

225 P. 135

38 Idaho 20

STATE, Respondent, v. THOMAS SIEPERT, THOMAS BROWN and ALBERT BROWN, Appellants

Supreme Court of Idaho

October 30, 1923

CRIMINAL LAW-APPEAL AND ERROR-MOTION FOR NEW TRIAL-SUFFICIENCY OF EVIDENCE-BILL OF EXCEPTIONS-VENUE.

1. Under the provisions of C. S., sec. 9068, where a motion for a new trial is made after judgment and overruled, and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion and is thereafter incorporated in and becomes a part of the record on appeal, the bill of exceptions so settled and allowed is properly before this court and the question of the insufficiency of the evidence will be reviewed.

2. The venue of a criminal offense is a material allegation and must be laid in the information and proven. Where it is not proven a judgment of conviction will be reversed on appeal and the cause remanded for a new trial.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. George W. Edgington, Judge.

Appellants were convicted of the crime of possession of intoxicating liquors. Reversed and remanded.

Reversed and remanded.

Miller & Ricks, for Appellants.

Venue like all other issuable facts in criminal cases, must be proved beyond a reasonable doubt. (Davis v. State, 134 Wis. 632, 115 N.W. 150; Gosha v. State, 56 Ga 36; Green v. State, 4 Ga.App. 260, 61 S.E. 234; Jones v. State, 113 Ga. 271, 38 S.E. 851; Murphy v. State, 121 Ga. 142, 48 S.E. 909; Cooper v State, 2 Ga.App. 730, 59 S.E. 20; Commonwealth v. Costley, 118 Mass. 1; State v. Keeland, 39 Mont. 506, 104 P. 513; People v. Manning, 48 Cal. 335; People v. Gleason, 1 Nev. 173; State v. Dickerson, 77 Ohio St. 34, 122 Am. St. 479, 11 Ann. Cas. 1181, 82 N.E. 969, 13 L. R. A., N. S., 341; Garst v. State, 68 Ind. 37; Keeler v. State, 73 Neb. 441, 103 N.W. 64; Weinecke v. State, 34 Neb. 14, 51 N.W. 307; Booten v. State, 86 Neb. 114, 125 N.W. 144.)

The insufficiency of the evidence to support the verdict and judgment can be reviewed by this court when properly preserved in a bill of exceptions. (Lewis v. San Francisco, 2 Cal.App. 112, 82 P. 1106; Froman v. Wilson, 20 Colo. App. 297, 78 P. 615; Keating v. Hull, 78 Conn. 719, 62 A. 661; City of Chicago v. McCartney, 216 Ill. 377, 75 N.E. 117; King v. Wright, 27 Ind.App. 600, 61 N.E. 796; Singer Mfg. Co. v. Stephens (Mo.), 68 S.W. 903; Yellowstone Nat. Bank v. Gagnon, 25 Mont. 268, 64 P. 664; University of Michigan v. McGuckin, 62 Neb. 489, 87 N.W. 180, 57 L. R. A. 917; United States Nat. Bank v. Hatton, 1 Neb. Unof. 795, 95 N.W. 364; Pratt v. Gillespie, 97 Tenn. 217, 36 S.W. 1097; C. S. 9007.)

The evidence can be brought upon the record of the district court in no other way than by a bill of exceptions. (Wilson v. City of Phillipsburg, 69 Kan. 867, 77 P. 582; State v. Wooldridge, 192 Mo. 12, 91 S.W. 125.)

There is no difference between a reporter's transcript and a bill of exceptions. (C. S., sec. 6886; Kelley v. Clark, 21 Idaho 231, 121 P. 95; Buster v. Fletcher, 22 Idaho 172, 125 P. 226; Fisher v. Davis, 24 Idaho 216, 133 P. 910; Steinour v. Oakley State Bank, 32 Idaho 91, 177 P. 843.)

Any bill or bills of exceptions is a part of the record on appeal. (C. S., sec. 9040.)

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

The sufficiency of the evidence to sustain the verdict will not be reviewed on a bill of exceptions. (C. S., secs. 9011, 9068; People v. Ah Hop, 1 Idaho 698.)

BUDGE, C. J. McCarthy, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

Appellants were convicted of the crime of unlawful possession of intoxicating liquor. From the judgment and from an order overruling a motion for a new trial this appeal is prosecuted. There is no reporter's transcript. The case is here for review upon a bill of exceptions duly settled and allowed by the trial judge.

The important question for determination is whether, in the absence of a reporter's transcript in lieu of a bill of exceptions, the insufficiency of the evidence to justify the verdict and judgment may be reviewed upon a bill of exceptions from an order overruling a motion for a new trial. Where a motion for a new trial is made after judgment and overruled and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion and is thereafter incorporated in and becomes a part of the record on appeal, the bill of exceptions so settled and allowed is properly before this court and the question of the sufficiency of the evidence will be reviewed. C. S., sec. 9068, provides that:

"An appeal may be taken by the defendant:

"1. From a final judgment of conviction.

"2. From an order denying a motion for a new trial.

"3. From any order made after judgment, affecting the substantial rights of the party.

"Upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, Providing, A specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court."

Prior to the amendment of C. S., sec. 9068, supra, the only method of procuring a review of the evidence was upon appeal from an order granting or denying a motion for a new trial. (State v. Lottridge, 29 Idaho 53, 155 P. 487.) Under the provisions of C. S., sec. 9068, an appeal may now be taken by the defendant from a final judgment of conviction and if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined, providing a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed in the supreme court.

We have therefore properly before us for review...