State v. Smith
| Decision Date | 15 May 1897 |
| Parties | STATE v. SMITH |
| Court | Idaho Supreme Court |
CRIMINAL PRACTICE-BILLS OF EXCEPTIONS.-A bill of exceptions in a criminal action will not be considered on appeal, unless notice of at least two days of the time and place that the bill of exceptions will be presented to the district judge is served upon the attorney of the adverse party, as required by section 7941 of the Revised Statutes.
SAME-NEW TRIAL-HOW AND WHEN TO BE MADE.-An application for a new trial must be made, in a criminal action, within ten days after verdict, and a notice of intention to move for a new trial is not an application for a new trial.
ORDER DENYING NEW TRIAL, WHEN REVIEWED ON APPEAL.-An order denying the defendant a new trial in a criminal action will not be reviewed on appeal unless said order was excepted to by the defendant at the time such order was made, and duly incorporated into a bill of exceptions duly settled as required by section 7944 of the Revised Statutes.
(Syllabus by the court.)
APPEAL from District Court, Latah County.
Affirmed.
Cozier & Pickett, for Appellant, file no brief on the points decided by the court.
R. E McFarland, Attorney General, for the State.
The transcript shows no proof that notice was given to the district attorney or other counsel for the prosecution, of the time when the statement, assignment of errors or bill of exceptions on motion for a new trial would be presented for settlement. (Rev. Stats., sec. 7941; People v Sprague, 53 Cal. 422; State v. Gawith, 19 Mont 48, 47 P. 207.) The statute requiring a notice of at least two days to the county attorney of the presentation of the bill to the judge is mandatory. (State v. Larkins, ante, p. 200, 47 P. 945.) The only legal method of showing that an exception was taken to the decision or ruling of the court in a criminal case is by a bill of exceptions duly settled and signed by the judge. A document purporting to be a bill of exceptions, settled and signed by the district attorney, and not by the judge is null and void. (People v. Ferguson, 34 Cal. 309; People v. Armstrong, 44 Cal. 326; People v. Trimm, 37 Cal. 274.) On appeal from an order denying a new trial in a criminal case, there must be a bill of exceptions settled by the judge after the disposition of the motion for a new trial. (People v. Ah Fat, 47 Cal. 631; People v. Williams, 45 Cal. 25; People v. Ah Sam, 41 Cal. 645.) It is true that the defendant filed and served his notice of intention to move for a new trial, alleging certain grounds therefor, and filed and served his notice of motion for a new trial. This was not sufficient; the motion for a new trial should have been made viva voce, and the grounds thereof specifically pointed out to the court, and after the ruling of the court denying the motion, a bill of exceptions specifying the grounds on which the motion was made, and the ruling thereon should have been presented to and settled by the judge. This was not done. (People v. Sansome, 98 Cal. 235, 33 P. 202.) The failure to file an assignment of errors must consequently entail an affirmance of the judgment or decree, or a dismissal of the appeal.
The defendant was convicted of murder in the first degree on the twenty-eighth day of February, 1896. On March 5th thereafter the defendant, by his attorneys, served on the district attorney a notice to the effect that the defendant intended to move for a new trial upon certain grounds, set forth in said notice of intention. On March 14th the defendant moved in arrest of judgment, which motion was overruled, and on the same day the defendant was duly sentenced to be executed in the manner provided by law. On the sixteenth day of May, 1896, the defendant served upon the district attorney written notice that he would at 2 o'clock P. M. of that day move for a new trial, and which notice was filed on said May 16, 1896, and on the same day the district judge made and signed an order, which was that day filed in the cause, denying the motion of the defendant for a new trial. The attorney general, on behalf of the state, moved to strike from the record defendant's statement, bill of exceptions, and assignment of errors, upon the ground that it does not appear in the record that notice of the time that said statement, bill of exceptions and assignment of errors (all of which should be styled "bill of exceptions") would be presented for settlement was served upon the attorney for the adverse party. And the attorney general further moved to dismiss the appeal from the order denying the defendant a new trial upon the following grounds, to wit: It does not appear that the defendant excepted to the order denying him a new trial, and such exception, if made, was not saved in a bill of exceptions thereafter made and settled as provided by law; that it is not shown in the transcript that a viva voce or other motion for a new trial was made by the defendant. The motion to strike the bill of exceptions from the record, and the motion to dismiss the appeal from the order denying the defendant a new trial, were argued and submitted, the said motions to be considered by the court with the cause on its merits.
We have carefully examined the record in this case, and reexamined the same. In our opinion the evidence shows beyond reasonable doubt that the defendant is guilty as charged, and that the verdict of the jury is sustained by the evidence. But in our opinion two palpable errors were committed during the trial by the lower court, one in admitting the confession of the defendant made to Dr. Hayes in the presence of a mob, and while the defendant was evidently in fear of being lynched said confession being advised by said Hayes under conditions which are not recognized or encouraged by law, and which confession should not have been admitted. The other error consisted in the action of the trial court in refusing to permit the witness Mr. Harris to testify under the following circumstances: The court had made an order excluding witnesses from the courtroom while not testifying. Harris was not on the list of defendant's witnesses, was not excluded from the courtroom, but had been present during the trial, and had heard other witnesses testify. Being called by the defendant, the district attorney objected to his being permitted to...
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