State v. Stokes

• Decision Date: 25 October 1934
• Docket Number: 6141
• Parties: STATE, Respondent, v. MRS. ELMER STOKES, Appellant
• Court: Idaho Supreme Court

37 P.2d 404

55 Idaho 51

STATE, Respondent, v. MRS. ELMER STOKES, Appellant

No. 6141

Supreme Court of Idaho

October 25, 1934

CRIMINAL LAW - APPEALS FROM PROBATE COURT AND JUSTICE OF PEACE - NOTICE OF INTENTION - NOTICE OF APPEAL - SERVICE, SUFFICIENCY OF-SERVICE BY MAIL-APPEAL AND ERROR-APPEAL TO DISTRICT COURT - ORDER OF DISMISSAL - NONAPPEALABLE ORDER - WRIT OF REVIEW.

1. Defendant desiring to appeal to district court from judgment of conviction in criminal action in probate or justice court must give notice of appeal as provided by statute (I. C. A sec. 19-4038).

2. Failure to give notice of intention to appeal at time of trial or rendition of judgment is not ground for dismissal of appeal by district court, but it is necessary to file and serve notice of appeal within time prescribed, and transcript of proceedings on appeal must show affirmatively filing and service, and if notice of appeal has not been filed and served within statutory time, appeal is dismissible (I. C A., sec. 19-4038).

3. Code of Civil Procedure sections relating to appeals providing for service of notices and papers and for service by mail held inapplicable to appeals in criminal actions (I. C. A., secs 12-501 to 12-503).

4. Unless statutes expressly allow substituted service of notice of appeal by mailing, publication or otherwise, a respondent can only be brought into appellate tribunal by personal service, and in all cases not within statute of substituted service, personal service must be made.

5. Statute requiring that notice be "served" without further specific direction implies written notice served personally on party designated.

6. Right to appeal is statutory and can be exercised only in method and manner provided by statute.

7. Dismissal of appeal held authorized where notice of appeal to district court from judgment of conviction in probate court was served by mail by depositing notice in postoffice on last day of statutory period for appeal (I. C. A., sec. 19-4038).

8. Where order of district court dismissed appeal from judgment of conviction in probate court on ground that appeal was not perfected in accordance with statute, defendant was granted an appeal (I. C. A., secs. 19-2703, 19-4038).

9. Defendant convicted in justice or probate court and appealing to district court in substantial conformity with statute is entitled to have case tried or dismissed on merits (I. C. A secs. 19-2703, 19-4038).

10. If state moves in district court to dismiss appeal from justice or probate court for failure to perfect appeal according to statute and such motion is granted, order granting motion is not appealable, but defendant may apply for writ of review to determine sufficiency of appeal from justice or probate court (I. C. A., secs. 13-202, 19-2703, 19-4038).

APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Robert M. Terrell, Presiding Judge.

Appeal from an order of the district court dismissing an appeal from a judgment of conviction of a misdemeanor, upon a plea of guilty, in the probate court. Affirmed.

Order of the district court affirmed. Petition for rehearing denied.

C. M. Jeffery and L. R. Morgan, for Appellant.

Service of notice of appeal is complete when notice with copy thereof was deposited in the mail. (People's Sav. & Trust Co. v. Rayl, 45 Idaho 776, 265 P. 703; I. C. A., secs. 12-501, 12-503.)

One may appeal to the district court from a judgment upon a plea of guilty in the justice or probate court, and it is error to dismiss such appeal upon the ground that there was a plea of guilty in the lower court. (State v. Dawn, 41 Idaho 199, 239 P. 279.)

The failure to give oral notice of intention to appeal at the time of sentence is not a sufficient ground to warrant the dismissal of an appeal from a justice or probate court. (State v. Barnard, 13 Idaho 439, 90 P. 1; State v. Dawn, supra.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Unless notice of appeal is both filed and served as required by section 19-4038, the district court is without jurisdiction. (Sec. 19-4038, I. C. A.; State v. Leeper, 30 Idaho 534, 165 P. 997; State v. Cowan, 29 Idaho 783, 162 P. 674.)

"Unless statutes expressly allow substituted service of notice of appeal by mailing, publication or otherwise, an appellee can only be brought into an appellate tribunal by personal service; and in all cases not within the statute of substituted service, personal service must be made." (2 Ency. Pl. & Pr. 221; Town of Casey v. Hogue, 204 Iowa 3, 214 N.W. 729, 731.)

The right to appeal is statutory, unknown to the common law, and it cannot be extended by courts to cases not within the statute. (General Custer Min. Co. v. Van Camp, 2 Idaho 40, 3 P. 22; Weiser Irr. Dist. v. Middle Valley Irr. Ditch Co., 20 Idaho 548, 155 P. 484; Reberger v. Johanson, 38 Idaho 618, 619, 223 P. 1079.)

WERNETTE, J. Givens, Holden, JJ., BUDGE, C. J., and MORGAN, J., Concurring.

OPINION

WERNETTE, J.

Defendant, Mrs. Elmer Stokes, was charged in the probate court of Franklin county of the offense of possession of intoxicating liquors. On September 18, 1933, defendant entered a plea of guilty to the charge, and thereafter, September 26, 1933, was sentenced to pay a fine of $ 300. A stay of execution was granted until October 3, 1933, and then failing to pay the fine imposed, defendant commenced service of her sentence October 4, 1933.

On October 6, 1933, defendant filed with the probate court a notice of appeal. Three days later, October 9, 1933, defendant filed with the court a motion to withdraw her plea of guilty. It appears that neither the notice of appeal nor the motion to withdraw the plea of guilty were personally served upon the prosecuting attorney, prior to October 9, 1933. However, on October 6, 1933, copies of the notice of appeal and motion to withdraw the plea of guilty were sent by registered mail to the prosecuting attorney. As to when such copies were actually received by the prosecuting attorney, the record is in doubt. It does appear quite certain, however, that they were not received on October 6, 1933, but at a later date, and appellant does not contend otherwise.

November 29, 1933, the prosecuting attorney filed a motion to dismiss the appeal on three grounds: 1. That the appeal was not taken within the time allowed by law, for the reason that sentence was passed September 26, 1933, and the prosecuting attorney was not served with notice until October 9, 1933. 2. That no notice of appeal was given when the sentence was passed on said defendant. 3. That the plea of guilty entered by defendant had never been withdrawn.

The district court granted the motion to dismiss the appeal, and the case is now before us on appeal from the order of dismissal.

Respondent appears specially for the express purpose of dismissing this appeal, contending that the district court did not have jurisdiction except for the purpose of dismissing the appeal from the probate court to the district court, and, further, that this court is without jurisdiction except for the purpose of dismissing this appeal, advancing two propositions of law, which are decisive. First, may a notice of appeal from a judgment of conviction in the probate court be served by mail by depositing the same in a postoffice on the last day of the statutory period for appeal? Second, is an order of the district court dismissing an appeal for jurisdictional defects prior to trial subject to review in this court?

Any defendant who desires to appeal to the district court from a judgment of conviction in a criminal action by a probate or justice court must give notice of appeal as provided by section 19-4038, I. C. A., which reads as follows:

"A defendant intending to appeal must give notice of his intention to do so at the time of the trial or rendition of the judgment, and must within ten days after the rendition and entry of the judgment, file with the judge or justice of the court wherein the conviction was had, and serve on the prosecuting attorney of the county, a notice of appeal, entitled in the action, setting forth the character of the judgment, and the intention of the defendant to appeal therefrom to the district court."

This court has heretofore held, in State v. Barnard, 13 Idaho 439, 90 P. 1, that failure to give notice of intention to appeal at the time of the trial or rendition of judgment is not a ground for dismissal of the appeal by the district court. But it is necessary both to file and serve notice of appeal within the time prescribed, and the transcript of proceedings on appeal must show affirmatively both the filing and service, and if the notice of appeal has not been filed and served within the statutory time, the appeal is subject to dismissal. (State v. Cowen, 29 Idaho 783, 162 P. 674.)

The primary question then arises, it not being contended that personal service of notice of appeal was made on the prosecuting attorney within the ten-day period required by statute, section 19-4038, I. C. A., as to whether a letter, addressed to the prosecuting attorney, containing the notice of appeal, deposited in the United States postoffice on the last day during which the notice of appeal could be served on the prosecuting attorney, is sufficient service. It is the contention of appellant that the service was sufficient and complete at the time when the letter with the notice was deposited in the postoffice, relying upon sections 12-501, 12-502 and 12-503, I. C. A. (Code of Civil Procedure), and citing the case of People's Savings etc. Co. v. Rayl, 45 Idaho 776, 265 P. 703, which is a civil case, in support of her contentions.

The question then arises, do sections 12-501, 12...