Foree v. State, 83 P. 596

83 P. 596 | Wyo. | 1906

Beard, Justice.

The plaintiff in error, Earl Foree, was convicted in the District Court of Sheridan County January 4, 1904, of the crime of- arson and sentenced to imprisonment in the penitentiary. On the same day a motion for a new trial was denied by said court. On January 3, 1905, a petition in error was filed by the plaintiff in error in this court, but no praecipe for summons in error was filed until January 10, 1905, when a praecipe was filed requesting the clerk of this court to issue a summons in error directed to the sheriff of Sheridan County. Summons in error was issued January 10, 1905, as directed and service thereof was accepted by the County and Prosecuting Attorney of Sheridan County January 12, 1905. No service of summons in error was ever made upon the Attorney General of the state. On February 4, 1905, the Attorney General accepted service of the brief of plaintiff in error, which acceptance of service was filed February 8, 1905. On April 8, 1905, the Attorney General, appearing specialty for that purpose only, filed a motion to dismiss the action for the reasons: that no summons in error had ever been served upon him; that he had not waived the service of summons; and that more than one year had elapsed since the entry of final judgment and the overruling of the motion for a new trial by the District Court of Sheridan County.

Section 1, Chapter 63, Session Daws, 1901, provides : “In all criminal cases after final judgment and within one year after the rendition of the judgment, proceedings to vacate, modify or annul such judgment may be begun in the Supreme Court by petition in error in the samé manner as is provided for taking civil cases to the Supreme Court under the laws of. this state.” Section 2 of said chapter provides that “summons in error in criminal cases issuing out of the Supreme Court shall be served upon the Attorney General of the state and the prosecuting officer of the county in which the judgment is rendered.” No praecipe for summons in error having been filed or summons issued or served upon the Attorney General -within one year from the rendition of the judgment, and service of summons not having been waived by him, the proceeding in error was not, in law, commenced within the meaning of the statute, and it is now too late to do so, as the time for so doing has expired. It is contended, however, that the acceptance of service of the brief by the Attorney General amounted to a general appearance in the case. But we.think it did not. The acceptance of service contains no waiver of any kind and is simply an acknowledgment in writing by.the Attorney General that the brief had been served upon him, and stands in the place of other evidence of service and nothing more. The failure to serve both the Attorney General and the prosecuting officer of the county in which the judgment is rendered (unless waived) within the time allowed for commencing proceedings in error is a sufficient ground for dismissal. (Caldwell v. State, 12 Wyo., 206; 74 Pac., 496.)

Is is urged that the question presented by the motion should have been raised by demurrer and not by motion. The petition in error was filed in time and its sufficiency is not attacked. The reason for dismissal as presented by the motion is that the appeal (and we use the word appeal in the sense in which it is used in the case above cited) had not been perfected within the time allowed by the statute, and in such cases it has been the uniform practice in this state to raise the question by motion to dismiss. (Lannier v. Haase & Finn, 1 Wyo., 25; Seibel v. Bath, 5 Wyo., 409; Kuhn v. McKay, 6 Wyo., 466; Caldwell v. State, supra.)

It is also argued at length, “that the defendant as a matter of right is entitled to a writ of error in this cause, and against which there is no limitation in this state.” The argument is that’the Legislature by the act of 1901 (Ch. 63 S. L.) provided a new and additional method by which criminal cases could be taken from the District Court to the Supreme Court on error and did not and could not, under our constitution, abolish writs of error; and that it was not the intention of the Legislature to simply change the method of applying for and securing a review of the judgment of the District Court, but to provide another and additional method for review, namely, by petition in error. If we were to assume that this contention is correct, which we do not do, we do not see how it can benefit the plaintiff in error in this case. If there are two methods by which he can have his case reviewed upon error in this court, he has elected which one of the two he would pursue, and having failed to bring his case within the time required for that method, the fact that, possibly, he may have another remedy can hardly be regarded as a good reason for not dismissing the present case for such failure. The case before us is not an application for a writ of error, but a petition in error; and not having been commenced within the time prescribed by the statute, the motion to dismiss must be sustained. Motion to dismiss sustained.

Potter, C. J., and Scott, District Judge, concur. Van Orsdel, J., having announced his disqualification by reason of having been Attorne)'- General, Hon. Richard H. Scott was called in to sit in the case.