State v. Miles

83 P. 697 | Idaho | 1906

SULLIVAN, J.

— The appellant in this case was convicted of the crime of burglary and sentenced to a term of five years in the state penitentiary. The attorney general moved to dismiss the appeal (1) on the ground that no copy of the transcript of the record was ever served upon the respondent or its attorney, and no written evidence of such service had been filed as provided in paragraph 9 of rule 27 of the rules of this court. As to that ground of said motion, paragraph 9 of rule 27 of the rules of this court provides that in all cases where an appeal is perfected, transcripts of the record (showing the date of filing and the undertaking on appeal) must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected, and written evidence of the service of the transcript upon the adverse party must be filed therewith. The appellant failed to comply with the provisions of that rule. The second ground of the motion is that no copy of the transcript after the same had been printed was ever served upon the respondent or its attorney as provided by paragraph 10 of rule 27 of said rules. Paragraph 10 of rule 27 provides that after the transcript is printed, a copy thereof shall be served upon the adverse party or his attorney. That rule has not been complied with by the -appellant. The third ground of the motion is that no copy of the brief of appellant has ever been served upon the respondent or its attorney as provided by paragraph 3 of rule 6 of said rules. Paragraph 3 of rule 6 of the rules of this court provides that the brief of appellant in both civil and criminal cases must be served within ten days after the filing of the transcript, which was not done in the case at bar. In the case at bar a printed transcript was prepared by the attorney of the appellant, and it was the duty of the appellant or his counsel to serve both the transcript and his brief on the attorney general at the time and in the manner required by the rules of this court. Paragraph 3 of rule 6 has been amended since this appeal was taken and requires the appellant in criminal cases to serve his brief both on the county attorney and the attorney general. Counsel for defendants in criminal cases on taking an appeal should see to it that the rules of this court are complied with in regard to the service of both transcript and brief. The attorney general is by law charged with the duty of representing the people of the state in cases in this court in which the state or the people is a party. Subdivision 1 of section 250 of the Revised Statutes, as amended by Laws of 1901, page 163, provides: ‘ ‘ It is the duty of the attorney general: 1. To attend the supreme court and prosecute or defend all causes to which the state or any officer thereof, in his official capacity, is a party; and all causes to which any county may be a party, unless the interest of the county is adverse to the state or some officer thereof acting in his official capacity.” It has been repeatedly held in other states under statutory provisions similar to the one above quoted that the attorney general, or some one acting by his authority, is the sole and exclusive representative of the people in the supreme court. (People v. Pacheco, 29 Cal. 210; Stewart v. State, 24 Ind. 142; State v. Fleming, 13 Iowa, 443; People v. Swift, 59 Mich. 529, 26 N. W. 694; People v. Burt, 51 Mich. 199, 16 N. W. 378; People v. Navarre, 22 Mich. 1.)

In a criminal case in which the defendant appeals, the state is the adverse party and the attorney general is the attorney for the state in all such appeals, and is charged with the duty of looking after and attending to the state’s interests, and a copy of the transcript and brief of the appellant must be served on him as required by the rules of this court. In this case there has been such an utter violation of the rules of this court in that regard that the motion to dismiss the appeal must be granted, and it is so ordered.

Stockslager, C. J., and Ailshie, J., concur.