*1 CISNEROS, Appellant Max Nicholas (Defendant below), CASPER, Appellee
CITY OF (Plaintiff below).
No. 3869.
Supreme Wyoming. Court of
Jan.
Rehearing Denied Feb. Raymond B. Whitaker R. James
McCarty, Casper, appellant. Emery, Casper, D. for appellee. Jack Before McINTYRE, J., and PAR- C. KER, McEWAN, GRAY, JJ. Mr. McEWAN delivered the Justice opinion of the court. This is an order of the po- lice court on fendant had failed to the record appeal in district court as not filing at least 10 term of court the notice of city in police justice was tried court of the of Casper, Wyoming separate *2 perfect the had failed to city ordinances. of offenses for violation by by not law as charges. on all guilty He was found of provided copies the time filing within appeal, on Au- of and gave He oral notice appel- the complaints, granted 1969, with said gust filed to dismiss and denied lee-city’s motion appeal. his written notice of motion. Febru- On August On filed ary 12, appellant-defendant “Transcript Entries” executed a of Docket supreme appeal to the court. notice of notice of which contained the written contended there peal undertaking appeal, all of and an complaint against him was a valid never in which were filed did not witness 1969. jus- swear to the 14, 1969, appellant-defendant On October tice, copies did not file of and thus he setting moved the court for order district court because with the trial, and on October 17 in existence. there was 16,1969. was set for trial on December appellee-city appellant-de- contended 16, 1969, appellee-city On December object form of fendant’s failure moved the court for an order dis- district prior of entry to his missing appellant-defendant’s appeal on guilty plea precluded his attack on appel- ground for the reason the and by of the lant-defendant had in filed required by law in that as days before the than 10 filed a following fil- term of the district mo- original complaint. of the ing of the notice of tion set for on December hearing January and on reset for parties quote Both various 1970. Proce- Rules Criminal dure, application since 22, 1969, On December Rule 51 states: stated: fendant filed a motion in which he municipal apply “These rules do not de- the above-named “COMES NOW courts; courts; appeals to district ‘original fendant and files herein the proceedings justice tried in misdemeanor warrant’, doing in * * courts; peace moves Court for an Order dis- missing defendant on “ * * * Appeals and Rule 38 that no sworn as justice court shall be ever made defendant there- statute.” fore, impossible it was and is for defend- appeal, ant to file herein as Follows Applicable are as Statutes sworn and warrant issued says that when thereon.” taken, shall, at justice original complaints and warrants were day least before the first filed on 1970. fil- term of the district appellee-city’s December 30 ing in the office mo- file tion hearing was reset for on February a certified clerk of 1970, and the matter heard on of the entries in his docket date. The appel- district court found the papers in the case. 5-120, 5-125, peace, appeals municipal Sections 5-130 and procedure pro- in mu in courts shall be taken the manner shall, nearly possible, justices appeals courts as as vided law from provided by general peace conform to that in criminal matters. laws of the in state courts of the sets forth the to determine if record had 5— County,
terms in of court been Natrona filed. which the fall term commenced on the first Copies were not Tuesday September, being September filed the clerk as The ultimate statute. *3 responsibility upon rested 7-409, says that to see they that were filed complaint shall be under oath. upon failing to do provisions Under had no recourse but to dismiss the 2 judgment statute on an unless the contention court, police to the district that there complaint was was mer cause The stands trial anew. statutes itorious. further that certified parties stipulated The police justice docket, justice’s entries of the present was not complaining when the wit- case, papers in be filed in the signed nesses and an un- court, office of clerk of the district police known officer stamped facsimile has been necessarily held that this signature to the com- includes a Town of plaints. moved Torrington Taylor, Wyo. v. 59 P. 137 the district court for an order 623; Anderson, 2d State v. Wyo. 71 cause him there was no 220, 222; City 255 P.2d Casper v. sworn complaint. He cited Rule 3 of Benaris, Wyo. 58, 74 P.2d 283 Wyoming Rules of Criminal Procedure Even in the absence of a statute requiring which shall be that a be up sent to oath, made previously but as we stat- there is a more basic rea ed, application to rules why son it is a necessary indispensable 7-409, However, courts. § part of the record. Since oath, states that be under shall anew, try must must 7-410, says may actions criminal be § be hands in the of the district court be by an commenced information subscribed cause, complaint, without there would and sworn to. nothing upon be try which defend ant. is It true that where to be oath it must be previously
We have also
held that
it is
sworn to before an
authorized to
official
duty
the appellant-defendant
to see
However,
administer the oath.
the oath is
filed, City
that
record is
of Cas
accused,
for the benefit of the
and if he
Benaris,
per
supra,
1026;
v.
283 P.2d at
sees fit
not
waive
benefit
and that the
timely,
State v.
objecting
goes
to the lack
it and
to trial
Anderson, supra,
2. Section W.S.1957. with, sion as he charged to what he jurisdiction. prive C.J.S. misled, p. surprised 948. was not nor he and Informations Indictments § the ac allega- misnamed nor denied essential tion, tak guilty, shall be pleading and he cused, by knew the nature of may charges all defects which waived him and the names en have witnesses; quash, and excepted complaining a motion be section, view of this held have we cited several information of verification want sections of the Constitution and pleading thereto. is waived (complaint) say agree we cited what Sorenson, Wyo. 241 P. State say. appellant-defendant says they How- 705, 706. ever, adVjsed we are not nor can we deter- pertinent to the mine that are were *4 also hand. The cited § jus was the trial as Constitution, the Wyoming Art. the oath have administered should tice who repealed note that it was as of appel complaining witnesses. If question any serious had error, the action of the being There no raised he could have signed the trial is affirmed. inquiry motion or point mere have been re matter could quash (concurring). PARKER Mr. Justice justice. stage at that solved by the ma- result reached concur in the any I fun prejudice determine We can ground that sole jority on the and was the accused right of damental ruling in its court was correct argued failure because of defendant’s injured any way. perfect the misapprehen- was never