State v. Whaley

• Decision Date: 30 September 1895
• Docket Number: 661.
• Citation: State v. Whaley, 16 Mont. 574, 41 P. 852 (Mont. 1895)
• Parties: STATE v. WHALEY.
• Court: Montana Supreme Court

41 P. 852

16 Mont. 574

STATE v. WHALEY.

No. 661.

Supreme Court of Montana

September 30, 1895

Appeal from district court, Ravalli county; Frank H. Woody, Judge.

David J. Whaley was convicted of grand larceny, and appeals. Affirmed.

Marshall & Corbett, Webster & Wood, and Toole & Wallace, for appellant.

H. J Haskell and E. L. Knowles, for the State.

DE WITT, J.

This is an appeal from a judgment convicting the defendant of the crime of grand larceny. A notice of motion for new trial was served February 10, 1894, and filed February 12, 1894. Another notice of intention to move for new trial was served June 1, 1894, and filed on the same day. Neither of these notices of intention stated particularly the errors upon which the party making the application relied. Cr. Prac. Act 1887, § 356; State v. Black, 15 Mont. 143, 38 P 674; State v. Fry, 10 Mont. 407, 25 P. 1055. It is conceded by the appellant's counsel that these notices do not contain such particular specification. Contemporaneously with filing the second notice of intention to move for a new trial, the defendant served and filed a written motion for new trial. While it is conceded by counsel that the notices of motion are insufficient in not specifying the particulars they contend with great earnestness that the motion for new trial should be construed to be a notice of intention to move. But it is perfectly apparent to us, from the record that this motion was not intended to be a notice of motion, for the sufficient reason that a notice of motion was filed at the same time that the motion was. It certainly never was the intention of counsel to consider never was the intention of counsel to consider their motion as a notice, when in fact they filed an independent notice upon the very same day. We cannot distinguish this case from that of State v. Fry, supra. In the last-named case the defendant gave a notice of intention, without specifying the particular errors, but stating that the motion was to be made upon the grounds to be set forth in the motion. Afterwards the defendant served and filed his motion for new trial, which specified every error that was relied upon by him. The motion was denied by the district court on the ground that no notice had been served. Page 408, 10 Mont., and page 1056, 25 P. After citing the statute (sections 355, 356, Cr. Prac. Act), the supreme court, in the Fry Case, said: "The statutes have designated the acts which are essential to the notice of the intention to move for a new trial. The court, in Burton v. Todd, 68 Cal. 485, 9 P. 663, has said: '·We conclude, therefore, (1) that, as the right to move for a new trial is statutory, it must be pursued in the manner pointed out by the statute.' The appellant could not lawfully embody in his motion for a new trial the particulars which should be stated in his notice of intention. The appellant has not filed or served a proper notice of his intention to move for a new trial, and the judgment is affirmed, and will be executed as directed in the court below." It has often been said in other decisions in this court that appeals are matters of statutory regulation, and that there must be a substantial compliance with the statute in order to confer jurisdiction upon this court. Courtright v. Berkins, 2 Mont. 404; Territory v. Hanna, 5 Mont. 247, 5 P. 250; State v. Gibbs, 10 Mont. 210, 25 P. 288; State v. Northrup, 13 Mont. 534, 35 P. 228. While the facts in the case of State v. Black are not wholly the same as in the case at bar, and while State v. Fry, above cited, is more direct authority on the matter now before us, still the following remarks from the Black Case are of general application. In that case we said: "We can see only two courses for this court to pursue in this case,--either to follow the statute, and disregard the defendant's objection, now made in his argument for the first time, that the instruction as to alibi was error, or to disregard the statute, and establish a rule of practice in contravention thereto. But, as quoted from a decision in the learned brief of defendant's counsel, ' Judex est custos non conditor juris, judicia exercere potuit, facere leges non potest.' And in the case at bar the law is as we have quoted it from the statute; and if we are the custodians, and not the framers, of the law, there is no course before us but to follow the mandate of the statute, and to hold that the alleged objectionable instruction is not now a subject for review." We cannot do otherwise than follow the authority of the Fry Case, and hold that the foundation for a motion for a new trial was not laid, owing to the fact that a proper notice of intention was not served and filed.

It is contended that there is a stipulation made between counsel which cures the absence of a proper notice of intention. We are of opinion that the stipulation does not aid the appellant, for the reason that it is simply to the effect that the bill of exceptions and papers considered by the court and used on motion for new trial, be settled, allowed, and considered as a bill of exceptions on appeal. Whatever effect this stipulation may have, it cannot be greater than to simply present to this court what the district court acted upon, and cannot in any way be considered as a waiver of the absence of a notice of intention to move.

Again it is contended that the state's attorney waived the notice of intention to move, as to some parts of the same, for the reason that he appeared and moved to strike out the notice and the motion on certain grounds. It is contended by appellant that the motion to strike out was directed at the notice of intention only as to the first four subdivisions of section 354, Cr. Prac. Act 1887, and was not directed at the three last grounds mentioned in said section. We are of opinion that this action by the state's attorney was not a waiver of the absence of a sufficient notice. As said in Gregg v. Garrett, 13 Mont. 13, 31 P. 721: "The defect taken advantage of is apparent in the notice itself, and requires no other matter inserted in the record to show this fact. This irregularity in presenting the motion, without stipulation or other action amounting to a waiver of proper notice, may have been the very ground upon which the trial court denied the motion. White v. Superior Court, 72 Cal. 475, 14 P. 87; Hayne, New Trial & App. §§ 14, 145. And we think, in the absence of anything in the record showing a waiver, the objection by respondent should be sustained." It has been held, on settlement of statements on motion for new trial or bills of exceptions, that when a party comes in, and by amendment or otherwise assists in making up the record, that he...