Territory v. Milroy

• Decision Date: 15 September 1888
• Citation: 7 Mont. 559
• Parties: TERRITORY v. MILROY.
• Court: Montana Supreme Court

7 Mont. 559

TERRITORY

v.MILROY.

Supreme Court of the Territory of Montana.

September 15, 1888.

Appeal from district court, Deer Lodge county.

Defendant, Theodore Milroy, was convicted in the probate court of Deer Lodge county of a misdemeanor, and appealed to the district court. For an informality in the bond his appeal was dismissed, and he appeals to this court.

Cole & Whitehill, for appellant.

W. E. Cullen, for the Territory.

DE WOLFE, J.

The appellant was tried and convicted in the probate court of Deer Lodge county for obstructing the public highway, and fined in the sum of $25. From this judgment he appealed to the district court of Deer Lodge county. When the case came up in that court, the county attorney moved to dismiss the appeal, because no sufficient appeal-bond, as required by the territorial statute, had been filed. Before this motion was decided, the defendant offered to file a new undertaking on appeal, in conformity with the requirements of the statute. This the court refused to allow, sustaining the motion to dismiss; thus affirming the judgment of the probate court. To reverse these rulings of the district court this appeal is prosecuted.

Section 510 of the third division of the Compiled Statutes of Montana states what an appeal-bond in a criminal case shall contain, when a person has been convicted in the probate court, and takes an appeal to the district court; and one of the requirements is that “he will appear in the district court on the trial therein.” This bond or recognizance filed on appeal in this case left out this provision, but was in other respects in conformity with the statute. It is contended on the part of the appellant that the offense of which he was found guilty in the probate court was only a misdemeanor, and as section 292 of the third division of the Compiled Statutes of the territory provides that misdemeanors may be tried by the court, without the presence of the defendant, where an undertaking has been executed to pay any fine and the costs that may be adjudged against the defendant in such action, that such an undertaking was filed in this case, and the requirements of the law substantially complied with, although it omitted the condition to appear in the appellate court. Secondly, the appellant contends that, if the bond he gave was irregular in failing to comply with the requirements of the statute, he should have been allowed to amend in the district court, where the informality of the bond was pointed out. The respondent controverts both of these propositions. We think the position taken by the appellant on both propositions the better view of the law, and giving effect to section 292 of the Criminal Practice Act, as well as to section 510 of the same act; that the bond filed was a substantial compliance with the statute, and could have been enforced against the...