Territory v. Bell

• Decision Date: 10 January 1885
• Parties: TERRITORY v. BELL and another.
• Court: Montana Supreme Court

6 P. 60

5 Mont. 562

TERRITORY v. BELL and another.

Supreme Court of Montana

January 10, 1885

Appeal from First district, Gallatin county.

Luce & Armstrong and Henry N. Blake, for appellants.

Wm. H Hunt, Atty. Gen., for respondent.

GALBRAITH J.

The defendants in this case were indicated for robbery. There was a demurrer to the indictment, which was overruled. The appellant James Lane, upon his demand, was granted a separate trial, and was tried and convicted of robbery in manner and form as charged in the indictment. Judgment was duly rendered, and from that judgment there is this appeal. There was a motion for a new trial and a motion in arrest of judgment. The motion for a new trial was made upon the following grounds, viz.:

(1) That the court misdirected the jury in a material matter of law; (2) that the court admitted illegal evidence; (3) that the verdict is contrary to law; (4) that the verdict is contrary to the evidence; (5) that the court erred in overruling the demurrer of the defendants to the indictment.

The motion in arrest of judgment was for the reason "that the facts stated in the indictment do not constitute a public offense." The same objection is presented by the demurrer, and will be disposed of when we come to its consideration. It does not appear that the exception to the refusal of the court to withdraw certain testimony of the witness Chizum from the consideration of the jury, which is the only evidence complained of as being illegal, is contained in any bill of exceptions settled and signed by the judge who presided at the trial, or filed with the clerk as required by law. Sections 348, 349, 350, Crim. Pr. Act.

The same may be said, also, in relation to the objections urged as reasons for granting a new trial, viz., that the verdict is contrary to law and the evidence. The evidence is not contained in any bill of exceptions which was settled and signed by the judge, or filed with the clerk, and will not therefore, be considered by this court. There is nothing in the record to show that the evidence, or any part thereof, was settled by the judge in any way whatever. We will not say that the verdict is contrary to evidence unless the evidence is properly before us; and whether or not, in this case, the verdict is contrary to law, depends so much upon the evidence that we cannot say that it is so unless we can consider the evidence. The claim that "the court misdirected the jury in a material matter of law," is for the reason that it gave certain instructions and refused to give certain others, which were requested by the defendant. We cannot say whether or not the instructions so given and refused were...