18 Mont. 362 | Mont. | 1896
The defendant appeals from judgment of conviction of the crime of assault with intent to commit murder. Under that appeal he reviews the order denying a new trial. The notice of intention to move for a new trial makes the following specification of error, which is now relied upon under section 356, Criminal Practice Act, 1887: “That the court misdirected the jury in a material matter of law, by giving to the jury instructions numbered 19, 21, 24, 26, 31 and 34, because said instructions did not state the law correctly, and were not applicable to the case at bar.”
The state contends that this specification is insufficient, and cites State v. Fry, 10 Mont. 407; State v. Northrup, 13 Mont. 534; State v. Black, 15 Mont. 143; State v. Whaley, 16 Mont. 574. The appellant does not contend that all, but that
In Woods v. Berry, 7 Mont. 195, this question is fully treated, and all of the former decisions in this court are reviewed. In that case the court, by Mr. Justice Bach, said: 11 We will now consider the first question: ‘-In what manner must an exception be taken to an instruction ? ’ and in connection therewith the cases of Griswold v. Boley, 1 Mont. 545, and Gum v. Murray, 6 Mont. 10. The manner of taking the exception in those cases is almost identical with that in the case at bar, and the difference between the manner of taking the exception in those cases, and that used in McKinstry v. Clark, is manifest. In the former cases, including the case at bar, there was one, and only one, exception to several instructions in gross, while in McKinstry v. Clark there was a separate exception, taken separately, to each separate instruction objected to. The first form or manner of taking an exception was declared to be of no avail, by the case of Griswold v. Boley and Gum v. Murray. ’ ’
As in Woods v. Berry, so in this case, the specification is to several instructions in gross, which method was there condemned; affirming Griswold v. Boley, 1 Mont. 545, and Gum v. Murray, 6 Mont. 10.
In Woods v. Berry the subject under consideration was an exception to instructions, and was decided at the time when, under the statute, counsel was required to take their exceptions upon the trial, and before the enactment of the statute Avhich declares that the instructions are deemed to be excepted to. Laws 1887, (15th Extra Session, p. 67.)
But in principle there does not seem to be a distinction between exceptions to instructions, and specifications, on motion
We are of opinion that this specification is, under our own decisions, too general, and must be disregarded.
If this rule as to specifications is not a wise or prudent one, it has now been too long imbedded in the decisions of this court to be changed by judicial construction. The defendant in a criminal case is entitled to a trial under the constitution, but he is entitled to apply for a new trial, and to present his appeal, only by conforming to the statutes. This doctrine has been held for 20 years'in this court. (Courtright v. Berkins, 2 Mont. 404; Territory v. Hanna, 5 Mont. 246, State v. Gibbs, 10 Mont. 210, State v. Northrup, 13 Mont. 534, State v. Black, 15 Mont. 143, State v. Whaley, 16 Mont. 574, State v. Pilgrim, 17 Mont. 311.)
After the time for serving notice of intention to move for a
The next question is whether this amended notice is good as an amendment. But it does not amend any specification which was contained in the former notice. It does make a specification which seems to be good; for it states that the court erred in refusing to give an instruction as requested by counsel for defendant, which instruction so refused was the same as the instruction given, and numbered 30, except that the words £ ‘beyond a reasonable doubt’ ’ were contained in the offered instruction, but were stricken out of that as given. But the original notice of intention to move for a new trial did not pretend to specify any error a; to instruction 30, or any error whatever as to refusing any instruction. The amended notice did not amend anything whatever that was contained in the original one. It introduced a wholly new specification. If it had been an amendment to anything contained in the original notice, or if it had specified properly and clearly anything that was insufficiently specified in the first, we would have before us another question; but, as the matter stands, it appears to us that the amendment seeks to make a specification entirely new, and which is unsupported by anything in the original notice. In Gillespie v. Dion, 18 Mont., 183, we held that the statement of contest in an election case was so defective as to be incapable of amendment after the time for giving such notice had expired. In that case we said:
‘ ‘Under a statute that requires a specific statement to be*366 filed, an elector ought scarcely to be allowed to file a general objection without specific grounds of contest within ten days after the election result is.declared, and thereafter to file his specifications based upon grounds perchance discovered after the lapse of ten days after the contest was instituted. In Heyfron v. Mahoney, 9 Mont. 497, cited by plaintiff [contestant], the transcript shows very full and explicit statements in relation to the various precincts where it was alleged by contestant that illegal votes were cast: The names of the alleged illegal voters were given at great length, and the exact canvass was set forth in detail. Upon the trial, Heyfron was allowed to amend by correcting certain voting lists by altering the spelling of the names of certain persons, and by adding the names of other persons to such lists, which did not affect the judgment in the case, upon the principle that immaterial defects in pleadings in election cases should be disregarded, that the ends of justice might be promoted. But that was a statement very different from the paper called a ‘statement’ in this case. Here the contestant is making a good statement out of nothing. But for lack of jurisdiction, heretofore discussed, the judgment is reversed and the proceeding dismissed.” See, also, Barber v. Briscoe, 8 Mont. 214.
So, in the case at bar, it appears to us that the amended notice undertakes to make what is claimed to be a good specification out of nothing. We are, therefore, of opinion that it cannot be considered.
The specifications being thus disposed of, there is nothing further in the case to consider, and the judgment is therefore affirmed.
Affirmed.