65 P. 65 | Idaho | 1901
The appellant was prosecuted by information upon the charge of assault with a deadly weapon with in
It is argued on behalf of the appellant that this stipulation was sufficient, and for that reason that appellant’s draft of his bill of exceptions was served within due time. We cannot agree with this contention. The section of the statute cited supra vests in the trial court, or a judge, a certain specific power, to wit, that of extending the time within which service of the draft of a bill of exceptions should be made. But, to our minds, this power cannot be exercised by the parties by stipulation, but can be exercised only by the court or a judge. For this reason, it is palpable that appellant’s bill of exceptions, or draft thereof, was not served as required by the statute; that is, within the time that the statutes requires that it must be served. For this reason the motion to strike defendant’s bill of exceptions from the record must be, and is, sustained. This leaves the case in this court without evidence. Hence the appeal from the order denying a new trial is of no avail, and is therefore dismissed.
Another reason for dismissing said appeal is found in the record, and is the basis of the second ground of motion for dismissal of said appeal, namely, the failure of the appellant to apply to the court, or judge thereof, for a new trial within ten days after the verdict, unless the court or judge extends the time as is required by section 7953 of the Revised Statutes. It appears from the record in this case that the application for a new trial was made December 26, 1900. This was twelve days after verdict, and not within the time required by the statute, and the record fails to show that such time was extended by the court or by the judge thereof.
This leaves this ease before us upon the appeal from the judgment of conviction. The evidence introduced at the trial is not