State v. Ray , 32 Idaho 363 ( 1919 )

BUDGE, J.

Appellant was convicted of the crime of unlawfully having in his possession intoxicating liquors and sentenced to serve a term of imprisonment in the county jail and to pay a fine. This appeal i's from the judgment and from an order overruling a motion for a new trial.

At the outset we are met with a motion to strike from the files the transcript on appeal from the order denying the motion for a new trial and to dismiss the appeal from said order. One ground of the motion is that no bill of exceptions, embodying the proceedings had on the motion for a new trial, was ever made, settled, served or filed.

The transcript filed in this court contains copies of certain files in the office of the clerk of the court below, certified by the clerk. In this certificate, the clerk states that the transcript contains a full, true and correct copy of all the files and records in the said action now on file and of record in the action which were used on the hearing of the motion of appellant for a new trial. The transcript does not contain anything which purports to be, or was ever intended to be, a bill of exceptions preserving the record. The bill of exceptions is the only statutory record provided for on appeal from an order overruling a motion for a new trial ifi a criminal case. (C. L., sec. 8051; State v. Smith, 4 Ida. 733, 44 Pac. 554; State v. Smith, 5 Ida. 291, 48 Pac. 1060; State v. Baker, 28 Ida. 727, 156 Pac. 103; State v. Maguire, 31 Ida. 24, 169 Pac. 175; State v. Park, 31 Ida. 694, 175 Pac. 813.) The motion is sustained.

Assignments Nos. 1 and 3 relate to the order denying the motion for a new trial, and will not be discussed.

Assignment No. 2, that the court erred in pronouncing the judgment and sentence which it did against the defendant, not only has not been discussed in appellant’s brief, but necessarily must stand or fall with the other errors relied upon.

Assignment No. 4 attacks the giving of certain particular instructions, and assignment No. 12 attacks generally all the instructions given. The record discloses that these instructions were given on the court’s own motion. No exceptions were taken thereto. Instructions given on the court’s own motion are not deemed excepted to, and in order to be reviewed must be excepted to and preserved by bill of exceptions, or excepted to and incorporated in the reporter’s transcript of the proceedings at the trial. (State v. Lundhigh, 30 Ida. 365, 164 Pac. 690.) The reporter’s transcript of the evidence and proceedings had and exceptions thereto on the trial presents for review only such rulings as appear therein to have been excepted to or are by statute deemed excepted to. (C. L., sec. 7946 (a).) Since no exception was taken to the giving of these instructions, and they are not deemed excepted to, they cannot be reviewed. (State v. Maguire, supra.)

The ruling of the court attacked by assignment No. 5 was not excepted to, and falls within the same rule.

Assignments Nos. 6, 7, 8 and 9 are without merit.

Assignments Nos. 10 and 11 predicate error upon the admission of certain testimony offered in rebuttal, on the ground that there was no dispute concerning the matters to which the witnesses testified, and that the court should have invoked the rule of strict rebuttal. It is not apparent how appellant could have been prejudiced by the introduction of evidence concerning matters over which there was no dispute, nor has he sought to enlighten the court upon this point, nor endeavored to. show wherein or in what manner he was prejudiced thereby, if at all. This court is enjoined by statute to give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. (C. L., sec. 8070; State v. Gruber, 19 Ida. 692, 115 Pac. 1; State v. Fondren, 24 Ida. 663, 135 Pac. 265.)

We have examined and disposed of all of the assignments of error, and no reversible error appearing therein, the judgment is affirmed.

Rice, J., concurs.