225 P. 135 | Idaho | 1923
— Appellants were convicted of the crime of unlawful possession of intoxicating liquor. From the judgment and from an order overruling a motion for a new trial this appeal is prosecuted. There is no reporter’s transcript. The case is here for review utpon a bill of exceptions duly settled and allowed by the trial judge.
The important question for determination is whether, in the absence of a reporter’s transcript in lieu of a bill of exceptions, the insufficiency of the evidence to justify the verdict and judgment may be reviewed upon a bill of exceptions from an order overruling a motion for a new trial. Where a motion for a new trial is made after judgment and overruled and the insufficiency of the evidence to support the verdict and judgment is set out in the notice and motion for new trial and thereafter, in support of the motion, a bill of exceptions embodying the material testimony is before the trial court and considered by it in passing upon the motion and is thereafter incorporated in and becomes a part of the record on appeal, the bill of exceptions so settled and allowed is properly before this court and the question of the sufficiency of the evidence will be reviewed. O. S., sec. 9068, provides that:
“An appeal may be taken by the defendant:
“1. From a final judgment of conviction.
“2. From an order denying a motion for a new trial.
“3. From any order made after judgment, affecting the substantial rights of the party.
“Upon an appeal from a final judgment of conviction, if a reporter’s transcript of the evidence appears in the record,*23 the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, Providing, A specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant’s brief filed with the supreme court.”
Prior to the amendment of C. S., sec. 9068, supra, the only method of procuring a review of the evidence was upon appeal from an order granting or denying a motion for a new trial. (State v. Lottridge, 29 Ida. 53, 155 Pac. 487.) Under the provisions of C. S., sec. 9068, an appeal may now be taken by the defendant from a final judgment of conviction and if a reporter’s transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined, providing a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant’s brief filed in the supreme court.
We have therefore properly before us for review the evidence contained in the bill of exceptions. If all of the evidence is not contained in the bill of exceptions the fault rests with the prosecuting attorney for failure to propose amendments to the bill incorporating all of the evidence bearing upon the point. This court cannot presume that there is any evidence other than that contained in the bill, and this is particularly true where there is a stipulation to the effect that the bill of exceptions contains all of the evidence, as in this case. (People v. English, 52 Cal. 211.)
Appellant has raised the point in his assignments of error that there is no proof of venue. The venue of an offense must be laid in the information and proven as any other material allegation. (State v. Cole, 31 Ida. 603, 174 Pac. 131.) Proof of venue must be either direct or indirect but it must be one or the other and the record must show it or the judgment will be reversed. (People v. Roach, 48 Cal. 382.) The evidence contained in the bill of exceptions in this case fails to show proof of the venue as alleged in the information.
