Thayer v. State

• Decision Date: 30 October 1939
• Docket Number: 2131
• Citation: 95 P.2d 80,55 Wyo. 50
• Parties: THAYER v. STATE
• Court: Wyoming Supreme Court

95 P.2d 80

55 Wyo. 50

THAYER v. STATE

No. 2131

Supreme Court of Wyoming

October 30, 1939

ERROR to the District Court, Park County; P. W. METZ, Judge.

Sidney Thayer was convicted of an offense, and he brings error. On the State's motion to dismiss the writ of error.

Motion dismissed.

For the defendant in error, the motion was submitted on the brief of Ewing T. Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General.

Plaintiff in error failed to file a bill of exceptions herein, as required by statute and the rules of this court. Sec 89-4701, R. S. 1931; Supreme Court Rule No. 13; Bank of Chadron v. Anderson, 7 Wyo. 441. The proceedings should therefore be dismissed. Posvar v. Pearce, 37 Wyo 509; Boulter v. State, 6 Wyo. 66. The motion for a new trial must be presented in a proper bill of exceptions. Fried v. Guiberson, 30 Wyo. 150; Mitter v. Black Diamond Coal Company, 27 Wyo. 72; Flint v Voiles, 50 Wyo. 43; Schmidt v. Bank of Newcastle, 29 Wyo. 260; Sec. 33-1101, R. S. 1931. Failure of an appellant to file a brief and abstract of the record within time is ground for dismissal. Starley v Wilde, 52 Wyo. 195; Simpson v. Building & Loan Ass'n., 45 Wyo. 425. Even if the cause were heard on its merits, the decision must necessarily be for defendant in error, since the ground relied upon by plaintiff in error for a reversal is misconduct of the jury as alleged in affidavits of jurors annexed to the motion for a new trial. It is well settled that a jury cannot impeach its own verdict by affidavit of its own misconduct. Pullman Company v. Finley, 20 Wyo. 456.

There was no appearance for plaintiff in error on the motion to dismiss.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This cause is before this court upon a motion of the Attorney General to dismiss, based upon stated grounds, as follows:

"1 That the record on file in this Court does not contain a bill of exceptions and therefore, matters complained of by the plaintiff in error are not before and cannot be considered by this Court.

"2 That the plaintiff in error has failed to file herein and to serve upon the defendant in error an abstract of the record of said cause as provided by Rule 37 of this Honorable Court, adopted September 30, 1930, effective January 30, 1931.

"3 That the plaintiff in error failed to serve his brief upon the Attorney General of the State of Wyoming, or on the County and Prosecuting Attorney within and for the County of Park, State of Wyoming, within a period of sixty days from and after the filing of the petition in error in this Court."

We are obliged to conclude that the motion must prevail. An inspection of the papers on file in the case establishes that there is no bill of exceptions herein, and, as stated in the petition in error, the review proceedings were "taken solely upon the proposition that the trial court erred in overruling" the motion of plaintiff in error for a new trial. No abstract at all of the record seems to have been prepared and served, as required by Rule 37 of this Court, and there appears to be no proof of service of the brief of plaintiff in error upon the Attorney General. No excuses concerning or efforts to correct these omissions are tendered. Under these circumstances, principles of practice enunciated by former decisions of this Court require the action by us as already indicated. See Morgan v. State, 26 Wyo. 212, 213, 181 P. 598; Fitzpatrick v. Rogan, 27 Wyo. 388, 390, 391, 197 P. 565, and cases cited, holding that "alleged error in overruling a new trial motion can be reviewed only when the motion is included in the bill of exceptions" as regards proceedings in error, the method of review adopted in the instant case.

As to the operation of Rule 37, aforesaid, see Simpson v Occidental Building & Loan Association, 45 Wyo. 425, 19 P.2d 958. Relative to the third ground of the motion see Rules of this Court numbered 15, 16, and 21; State v. Kelly, 33 Wyo. 420, 240 P. 207; Wilhelm v. State, 13 Wyo. 511, 81 P. 882; State v. DeWald, 50 Wyo. 39, 57 P.2d 685, and other cases appearing in the...