State v. Wright.

• Decision Date: 13 March 1923
• Docket Number: No. 2767.,2767.
• Citation: 213 P. 1029,28 N.M. 411
• Parties: STATEv.WRIGHT.
• Court: New Mexico Supreme Court

28 N.M. 411

213 P. 1029

STATE

v.WRIGHT.

No. 2767.

Supreme Court of New Mexico.

March 13, 1923.

Syllabus by the Court.

Assignments of error which necessarily involve a consideration of the evidence submitted and the rulings made thereon cannot be sustained, where such evidence and rulings are not certified to, as a bill of exceptions, by the trial judge, his successor in office, or some other judge as provided by law, as such a certificate is necessary to their authenticity or verity.

An assignment of error which complains of a denial of a motion for a new trial cannot be considered, where such motion is not incorporated in the record and in no wise before this court.

Appeal from District Court, Grant County; Ryan, Judge.

Esby R. Wright was convicted of larceny of one head of neat cattle, and he appeals. Affirmed.

An assignment of error which complains of a denial of a motion for a new trial cannot be considered, where such motion is not incorporated in the record and in no wise before this court.

A. W. Morningstar, of Lordsburg, and White & Royall, of Silver City, for appellant.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

BRATTON, J.

Appellant was found guilty upon the second count contained in the indictment, which charged him with the larceny of one head of neat cattle belonging to an unknown owner.

The first error complains of the refusal of the trial court to sustain appellant's motion made at the close of the state's case in chief to dismiss said count and direct a verdict of not guilty thereon, in that there was no evidence submitted which tended to show that such animal belonged to an unknown owner. The second error is predicated upon the refusal of appellant's motion to dismiss said count and direct a verdict of not guilty thereon, in that the evidence generally was insufficient to submit said count to the jury or to support a verdict of guilty thereon. The third error assigned involves the correctness of certain rulings made during the trial concerning the admissibility of certain evidence. A consideration of each of these assignments necessarily requires a review of the evidence, which we cannot do, because the record contains no bill of exceptions containing the evidence submitted and the rulings made during the trial. There is attached to the record a purported transcript of the evidence, but it is not in any manner signed or certified to by the trial court. No attempt appears to have been made to comply with the provisions of section 27, c. 43, Laws 1917, which is in the following language:

“In all cases tried by the court, either with or without the intervention of a jury, the testimony, all rulings of the court, objections made and exceptions taken on the trial shall be taken down by the court stenographer. After such trial any party to the action may require ...