State v. Sylvia

• Decision Date: 19 May 1938
• Docket Number: 26887.
• Citation: 79 P.2d 639,195 Wash. 16
• Parties: STATE v. SYLVIA et al.
• Court: Washington Supreme Court

79 P.2d 639

195 Wash. 16

STATE v. SYLVIA et al.

No. 26887.

Supreme Court of Washington

May 19, 1938

Department 1.

Appeal from Superior Court, Clallam County; John M. Ralston, Judge.

Eugene F. Sylvia, Joe M. Sylvia, Manuel Sylvia, Charles Newman alias Charles Brown, and John Doe Johnson were charged with the crime of grand larceny; Eugene F. Sylvia, Joe M. Sylvia Manuel Sylvia and Charles Newman, alias Charles Brown, were convicted thereof, and they, except Charles Newman, alias Charles Brown, appeal.

Affirmed.

John F Garvin, of Seattle, for appellants.

Joseph H. Johnston and John M. Wilson, both of Port Angeles, for the State.

HOLCOMB Justice.

The information upon which appellants were tried contained two counts charging Eugene F. Sylvia, Joe M. Sylvia, Manuel Sylvia, Charles Newman (alias Charles Brown), and John Doe Johnson with the crime of grand larceny.

Count one accused Manuel Sylvia, Charles Newman, and John Doe Johnson with stealing and unlawfully appropriating to their own use April 8, 1937, approximately eight hundred feet of cable having a value in excess of twenty-five dollars with the intent to deprive the owner, Crown Zellerbach Paper Company, a corporation, thereof; and that Eugene F. Sylvia and Joe M. Sylvia aided and abetted in the commission of this crime.

Count two accused Eugene F. Sylvia and Joe M. Sylvia with receiving and concealing the property mentioned in count one, knowing the same to have been stolen; and that Manuel Sylvia, Charles Newman, and John Doe Johnson aided and abetted and assisted them in the commission of this crime.

Appellants demurred to the information. The demurrer was overruled. A motion was also made to set aside the information on several grounds.

The jury returned a verdict of guilty of the crime of grand larceny as charged in th information against Joe Sylvia, Eugene F. Sylvia and Manuel Sylvia, and judgment was entered finding each of them guilty of the crime of grand larceny, and they were sentenced for a term of not more than fifteen years, and costs were taxed against them. Charles Newman was also found guilty of grand larceny, but his sentence was suspended contingent upon his good behavior.

A motion for a new trial was made and denied, and this appeal taken.

Two assignments are presented, namely, the overruling of appellants' demurrer, and the refusal of a new trial.

In perfecting their appeal counsel for appellants presented a bill of exceptions in narrative form to the trial court for certification. Respondent moved the lower court to correct the same by including therein the direct and cross-examination of a number of witnesses who testified at the trial, but whose testimony had been omitted.

November 9, 1937, the trial court entered an order in which it declined to certify a proposed amended bill of exceptions or statement of facts filed November 8, 1937, because it was insufficient and inadequate, and did not contain all the material facts relating to the case. The court directed appellants to make appropriate corrections and to add the testimony of certain witnesses. January 13, 1938, another order was entered by the trial court in which it refused to certify an amended bill of exceptions filed January 8, 1938, because the proposed bill of exceptions was inadequate and inaccurate.

Numerous extensions of time have been granted by the chief justice to enable appellants to file a duly certified bill of exceptions or statement of facts with this court.

Appellant applied to this court for an alternative writ of mandate commanding the superior court for Clallam county to certify a bill of exceptions or to show cause why he had not done so. This matter came on for hearing, and January 31, 1938, an order was entered denying the writ and the time within which to file with this court a duly certified statement of facts or bill of exceptions was further extended.

The record Before this court is very fragmentary. There have been filed with the clerk of this court what purport to be a statement of facts and three amended bills of exceptions, none of which have been certified by the trial judge.

Rem.Rev.Stat. § 391, provides:

'The judge shall certify that the matters and proceedings embodied in the bill or statement, as the case may be, are matters and proceedings occurring in the cause and that the same are thereby made a part of the record therein; and, when such is the fact, he shall further certify that the same contains all the material facts, matters and proceedings heretofore occurring in the cause and not already a part of the record therein, or (as the case may be) such thereof as the parties have agreed, to be all that are material therein. The certificate shall be signed by the judge, but need not be sealed; and thereupon all the matters and proceedings embodied in the bill of exceptions or statement of facts, as the case may be, shall become and thenceforth remain a part of the record in the cause, for all the purposes thereof and of any appeal therein.'

We have held that failure to file a statement of facts in a criminal case within the statutory ninety day period is jurisdictional even though the belated filing was due to neglect of accused's counsel. State v. Harder, 130 Wash. 367, 227 P. 501. Cf. State v. Schafer, 154 Wash. 322, 282 P. 55.

That the statement of facts or bill of exceptions must be...