State v. Barnard, 90 P. 1

State v. Barnard

90 P. 1 | Idaho | 1907

AILSHIE, C. J.

The defendant was convicted of a misdemeanor in a justice’s court of Cassia county, and thereafter and within the time prescribed by statute (Rev. Stats., sec. 8321), filed and served his notice of appeal, which, after *442giving the title of the court and cause, is as follows: “You will please take notice that the defendant in the above-entitled action ;hereby appeals to the district court of the fourth judicial district in and for the county of Cassia, from the judgment therein made and entered in the said justice court on the 18th day of January, 1906, in favor of the said plaintiff and against the defendant and from the whole thereof. This appeal’is taken on the question of both law and fact.” He thereupon gave bond in the sum of $500 as, provided by section 8324, Revised Statutes, whereupon he was released from custody and secured a stay of further proceedings. When the ease was called in the district court it was set for trial, and prior to the case being called for trial the county attorney moved to dismiss the appeal upon the grounds: ‘ ‘ 1. That the defendant did not give notice of his intention to appeal either at the time of the trial or at the time of the rendition of the judgment; 2. That the notice of appeal does not set forth the character of the judgment appealed from.” It appears that the justice of the peace had sent up a copy of his docket and minute entries and all the papers in the case, and that it did not appear from any of the entries that the defendant had ever given notice of his intention to appeal as provided for in section 8321, Revised Statutes. ■ The defendant offered to show that, as a matter of fact, he did give such notice, although the minutes did not show it. The court refused to allow him to make such showing. He then moved to strike from the record and .files all papers and files not required by section 8323, Revised Statutes, and that motion was granted. The court, at the same time, sustained the motion made by the county attorney to dismiss the appeal. The only order or judgment that appears to have ever been made in the district court, and the only judgment from which this appeal is taken, is found in the court minutes, and is as follows: “Certified copy of the justice’s docket of Twin Falls precinct present in court ordered stricken from the files in this case by the court, and the motion filed herein by the county attorney to dismiss the action sustained and granted. Exceptions to the ruling of the court were taken by defendant’s counsel, M. J. Sweeley.” The defendant has appealed from *443this order or judgment, as it is called, to this court. The attorney general has moved to dismiss the appeal for the reason that the record fails to show that any appealable order was ever made or entered in the lower court. This motion is well taken, and the appeal must be dismissed. The case does not appear to have been finally disposed of by any proper judgment or order of the district court and is clearly still pending in that court. There does not seem to have been any judgment entered from which the defendant could appeal. He has not been sentenced by the district court; no judgment has been entered against him; no final disposition of his case has been made, and he is still apparently at large.

In the condition of the ease, however, we think it proper to observe that the attempt to dismiss the appeal was clearly improper and abortive. The defendant had taken his appeal in substantial conformity with the provisions of the statute, and he was entitled to have the ease either tried or dismissed. It may be that a dismissal of his appeal would have amounted to a dismissal of the action against him under the peculiar provisions of our statute governing such appeals. (See sees. 8320-8327, inclusive.) On that, however, we are not called to express an opinion in this case. The record on appeal from the justice’s court in a criminal case is not required to show that the defendant ever gave notice of his intention to appeal. That notice is evidently given for the benefit of the justice and the officer having the prisoner in charge, and after the case is transferred to the district court it is evidently not a ground for a dismissal of the appeal, even though such notice of intention had not been given. If it had been intended that notice of intention to appeal should be jurisdictional, the legislature would undoubtedly have required that fact to appear in the record sent up on appeal. As for the other ground that the notice of appeal did not set forth the “character of the judgment,” we think it is without merit. The only purpose of setting forth the character of the judgment appealed from is to identify the case, and the particular judgment from which the appeal is taken. That requirement is made for the particular benefit of the county attorney and the justice in whose court the judgment was entered. “Where *444the notice contained the title of the court and the cause in which the judgment was entered and specifies the date on which it was entered, and that the same was in favor of the state and against the defendant, it was clearly sufficient to identify the judgment, unless it be that several judgments had been entered against the defendant on the same day. If more than one judgment had been entered against the defendant on the same date in the same court, then, of course, it would be necessary to more particularly identify the specific judgment from which the appeal was sought. The attempt to dismiss the appeal in this case in the district court was clearly error, but since no judgment has been entered in the district court, there is apparently nothing to appeal from, and this appeal must be dismissed, and it is so ordered.

Sullivan, J., concurs.