94 P. 581 | Idaho | 1908
This is an appeal from a judgment of conviction and an order denying a motion for a new trial. The attorney general moved to dismiss the appeal from the order denying the motion for new trial, and his motion was confessed by appellant, and the appeal- was accordingly dismissed. This leaves the appeal here from the judgment only. The appeal from the order denying a new trial having been dismissed, the court is not authorized to examine into the sufficiency of the evidence to support the verdict and judgment, nor has it authority to examine the affidavits presented and used on the hearing on that motion wherein it was claimed that the jury was guilty of misconduct. (State v. Suttles, 13 Ida. 88, 88 Pac. 238; Walker v. Superior Court, 137 Cal. 369, 67 Pac. 336.) The court on this appeal, however, may examine into the bill of exceptions for the purpose of determining whether the court committed any errors of law in the progress of the trial.
The first assignment of error is directed against the action of the court in admitting Plaintiff’s Exhibit “B,” which was the bill of sale executed by the defendant in favor of the purchaser of the animal and delivered at the time of the sale of the animal. No exception appears to have been taken to the introduction of this evidence at the trial, and it is too late now to raise the objection. We may say, however, that an examination of the exhibit and the testimony introduced in connection therewith satisfies us that its admission was entirely proper.
The appellant also assigns the action of the court in giving instruction No. 3 as error. That instruction appears to have been given by the court of its own motion, and under the rule announced in State v. Suttles, 13 Ida. 88, 88 Pac. 238, State v. O ’Brien, 13 Ida. 112, 88 Pac. 425, it was necessary to take an exception to such an instruction and embody or identify the same in a bill of exceptions. Such was not done, and the court’s action cannot therefore be reviewed on this appeal.
No reason appearing why the judgment should be reversed, and no error of law appearing from the record, the judgment should be affirmed, and it is so ordered.