State v. Wright

• Decision Date: 05 April 1906
• Citation: 85 P. 493,12 Idaho 212
• Parties: STATE, Respondent, v. JOHN WRIGHT, Appellant
• Court: Idaho Supreme Court

85 P. 493

12 Idaho 212

STATE, Respondent, v. JOHN WRIGHT, Appellant

Supreme Court of Idaho

April 5, 1906

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Frank J. Smith. Judge.

Defendant was convicted of the crime of grand larceny, and appealed from the judgment and order overruling a motion for new trial. Affirmed.

Affirmed.

Frank Harris, for Appellant.

There being no evidence that the defendant was connected with the branding, there was no evidence of a taking by him. (Black v. State, 38 Tex. Cr. App. 58, 41 S.W. 606.)

In order to warrant a conviction of crime on circumstantial evidence, the circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, and no one else committed the offense charged. (Carlton v. People, 150 Ill. 181, 41 Am. St. Rep. 346, 37 N.E. 244; State v Nesbit, 4 Idaho 548, 43 P. 66; State v. Burke, 11 Idaho 420, 83 P. 228.)

Instruction No. 11 is erroneous in that it assumes the existence of facts not proven; it assumes that there was evidence given that the defendant was seen in the possession of the property soon after it was stolen, while there is no such evidence in the record, neither is there any evidence as to when the animal was stolen, if ever stolen at all.

Instructions which assume that there is evidence before the jury tending to prove material facts, when in fact there is no such evidence, are improper and generally erroneous. (Hughes' Instructions to Juries, sec. 192, and cases there cited.)

The twelfth instruction is error for the reason the judge told the jury, in effect, what he understood the evidence to be on this point. (People v. Mathai, 135 Cal. 442, 67 P 694.)

J. J. Guheen, Attorney General, and Edwin Snow, for Respondent.

The provision of section 7953 of the Revised Statutes has been wholly violated by the appellant in the motion for a new trial in the court below, and the appeal from the order overruling the motion for a new trial should be dismissed.

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. (State v. Smith, 5 Idaho 291. 48 P. 1060; State v. Dupuis, 7 Idaho 614, 65 P. 65; State v. Rice, 7 Idaho 762, 66 P. 87.)

The bill of exceptions must be stricken from the files, because it was never settled, as a bill of exceptions to the order of court overruling the motion for a new trial, as provided in section 7944 of the Revised Statutes. (State v. Smith, 5 Idaho 291, 48 P. 1060.)

The bill of exceptions cannot be retained and considered on the appeal from the judgment. (Cosgrave v. Howland, 24 Cal. 457; Free v. Starr, 13 Cal. 170; Lower v. Knox, 10 Cal. 480; Burdge v. Gold Hill Water Co., 15 Cal. 198; Williams v. Rice, 12 Nev. 234.)

There is nothing before this court but an appeal from the judgment, with no statement on such appeal. That being the case, the court will assume that the evidence was sufficient to warrant the verdict, and will further assume that the trial court's charge to the jury was pertinent to the facts proved on the trial. (People v. Williams, 2 Idaho 366, 16 P. 552; People v. Woods, 2 Idaho 364, 16 P. 551.)

Even if the statement on motion for a new trial may be considered on the appeal from the judgment, the scope of review which could at most be had would be that provided for in section 7940 of the Revised Statutes. (See State v. Smith. supra.)

It was the duty of the court to refuse the peremptory instruction asked for by defendant to the effect that the jury find the defendant not guilty. (Territory v. Neilson, 2 Idaho 614, 23 P. 537; People v. Horm, 70 Cal. 17, 11 P. 470.)

The instructions objected to, numbers 11 and 12, cannot be reviewed by the court, for the reason that these being instructions given by the court of its own motion, the record must show that they were excepted to before verdict. (State v. Schieler, 4 Idaho 120, 37 P. 272; State v. Hurst, 4 Idaho 345, 39 P. 554.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

Appellant was charged with the crime of grand larceny in the district court of Washington county, to wit: "That the said John Wright on or about the fifteenth day of May, 1905, in the county of Washington, state of Idaho then and there one bay horse, the same being the personal property of W. M. Pearson, did unlawfully and feloniously steal, take, lead and drive away--contrary to the form, force and effect of the statute in such cases made and provided, and against the power, force and dignity of the state of Idaho."

To this information defendant plead not guilty; a trial was subsequently had, which resulted in a verdict of guilty. Defendant moved for a new trial, which was overruled. The appeal is from the order overruling the motion for a new trial and from the judgment. Learned counsel for appellant assigned two errors, to wit: 1. "That the court misdirected the jury in matters of law, and erred in the matter of decisions of questions of law arising in the trial of the cause." 2. "That the verdict is contrary to law and the evidence."

Counsel for respondent moved to dismiss the appeal from the order of the court denying a new trial, and also to strike the bill of exceptions from the record for the reason that appellant did not comply with section 7953 of the Revised Statutes of 1887, by making his application for a new trial within ten days after verdict. This section provides: "The application for a new trial may be made before or after judgment; and must be made within ten days after verdict, unless the court or judge extends the time."

The verdict was rendered on November 1st, and on November 3d the defendant served and filed what is designated "notice of motion for new trial," wherein he stated all the grounds upon which he thereafter moved the court for a new trial and addressed the notice to the district judge and the prosecuting attorney in and for Washington county. On the same date, the prosecuting attorney entered a stipulation with defendant's counsel for an extension of time for a period of sixty days in which to prepare and present a bill of exceptions, and on the same date the trial judge made and entered an order to the same effect. It is clear and undisputable, we think, that the prosecuting attorney district judge, and all parties to this action understood the so-called "notice of motion for new trial" as amounting to an "application for a new trial" within the meaning of section 7953 of the Revised Statutes. Had they not so understood it, there would have been no use or object in granting an extension of time for the settlement of "a bill of exceptions and statement of the case on motion for a new trial" as was done by the trial court. The foregoing views are also re-enforced by the fact that the prosecuting attorney made no objection whatever to the consideration of defendant's motion for a new trial when the same was formally made, on the ground that the same had not been made within the statutory time. The contention which is here made by the attorney general for the first time in this court was never presented to the trial judge nor urged in any manner until the case was called for hearing in this court. We are admonished by section 8070 of the Revised...