204 P. 362 | Mont. | 1922
delivered the opinion of the court.
The state undertook to appeal from an order granting the defendant a new trial, but failed to have the proper record prepared, and a motion to dismiss the appeal has been interposed.
The motion for a new trial was presented to the lower court
The state relies upon the provisions of section 9345, Revised Codes, but unfortunately for it that section was superseded completely long prior to the time when this cause of action arose. Sections 9339 to 9345, inclusive, were enacted in 1895, and constitute, respectively, sections 2170 to 2176 of Penal Code of 1895. Section 2176, Penal Code (sec. 9345, Rev. Codes) contained two distinct provisions, each relating to appellate procedure in criminal cases. The second one was to the -effect that any of the orders enumerated in sections 2172 and 2173, Penal Code (secs. 9341 and 9342, Rev. Codes) might be reviewed on appeal without a bill of exceptions, and among the orders mentioned was an order granting or refusing a motion for a new trial.
In 1903 the legislature enacted Chapter 34, Laws of 1903, the purpose of which was to require all matters, not a part of the technical record as defined in section 9376, to be presented on appeal by bill of exceptions. That Chapter was carried forward into the Codes of 1907 as sections 9346 and 9347. The meaning of section 9347 is too plain to admit of doubt. The-language is: “The only method of preserving for review by the supreme court on appeal, any proceeding, evi
The first provision of section 2176, Penal Code, was to the
Our conclusion is in harmony with the views heretofore expressed in State v. Stickney, 29 Mont. 523, 75 Pac. 201, State v. Kremer, 34 Mont. 6, 85 Pac. 736, and State v. Libby Yards Co., 58 Mont. 444, 193 Pac. 394.
Chapter 225, Laws of 1921, did not become effective until after the proceedings in this action had been taken, and its provisions have no application here.
The motion is sustained and the appeal is dismissed.
Dismissed.