State v. Syverson

159 N.W. 40 | S.D. | 1916

GATES', J.

On this, motion the state asks that there be stricken from the printed 'brief: (a) The statement of the case; (to) the assignments of error; (c) the assertion that the statement of the case prepared by appellant .contains all of the material evidence received upon the trial.

[1] It is asserted by the Attorney General that much material evidence is omitted from the printed record bearing upon the correctness of the rulings of the trial court upon the reception and exclusion of evidence. Appellant’s counsel admit that they have left out much evidence, but contend that such -omitted portion was not material to their theory of the defense. If appellant’s theory of the defense were unchallenged; if the state accepted that theory — then of course appellant’s omission would be .proper, but where such evidence is material upon a contrary theory, claimed by the state to toe -the correct theory, it is the duty of appellant in perfecting the appeal to include the material evidence bearing upon the -opposing theory as well as that hearing upon his own. We are of the opinion- that the Attorney General’s contention is well founded.

[2] It is asserted by the -Attorney General, and many instances are pointed out, that the appellant -has -omitted muc-h material evidence -bearing upon the issue raised by the appellant, viz., that the evidence was insufficient to justify the verdict. Appellant’s counsel have not seriously disputed this assertion, except to state that in their opinion they have fairly stated all -of the evidence material to the issues raised. Rule 6 (140 N. W., viii) of this court, following chapter 172, Laws 1913, provides:

“Such brief shall contain, besides any citation of authorities and argument, a clear, concise, and condensed statement of the contents of such parit or parts of the settled record as may be necessary to present fullyr to this court the errors assigned and to show that they are prejudicial to appellant, setting forth so much -thereof only as is necessary -to a full understanding of all the questions presented to this court for decision; provided, however, that whenever the appellant shall seek to rely upon an assignment to the effect -that the evidence was insufficient to- support the verd-ic-t, finding1, or other -decision, he shall cause it to affirmatively appear thalt 'the 'said statement in his brief contains a statement of all the material evidence received upon the trial.”

Rule 7 (140 N. W. viii) of this court provides:

“If the respondent shall deem the statement of the contents of the settled record as contained in the appellant’s brief to be imperfect or unfair, he may insert in his brief such further or additional statement as he shall deem necessary to á full understanding of the questions presented to this court for decision.”

It seems to be the understanding of appellant that, having made the assertion in his brief that all of the material evidence appears in his brief, it is the duty of the state to print such additional parts of the record as the Attorney General deems material. That is ordinarily the rule, and, except in a direct challenge like this, it is the rule. That rule, however, is not intended to shift from appellant to respondent the burden of bringing before this court the record on appeal. We are of the opinion that the appeal record in this case does not fairly state the material evidence received upon the trial, and that upon the record as it stands the sufficiency of the evidence to "sustain the verdict ought not to be considered by this court.

[3] The Attorney General contends that such of the evidence as is printed is taken verbatim from ithe settled record without any attempt at condensation,. Appellant’s counsel say that an examination of the evidence will disclose that it is as succinctly stated by question and. answer as it is possible to state it. We think appellant’s counsel are in error. As an illustration, the matter on page 63 of appellant’s brief could have been condensed to les than a half page. So, too-, the matter on pages 97, 98 and 99 could have been printed in half the space. We do not think there is any reason why nearly all of Ithe matter set forth by questions and answers, except where error is .assigned upon the rulings on evidence, should not have been put in narrative form.

[4] Again, many questions are set forth verbatim with the exceptions and rulings, and' such rulings are not assigned as error, These should be eliminated, and the evidence stated in narrative form.

[5] Again, in almost every instance the ruling and objection -take two lines of the printed record, thus:

“The Court: Overruled.

“Exception by defendant.”

This should properly be condensed to one line, thus:

“Objection 'Overruled. Defendant excepts.”

Again, 236 lines, or more than 8 pages, are consumed by printing on a separate line the words, “Settled record,” with the ■page number. These references might have been made by simply giving the page number in parenthesis and inserting it on tihe previous line, accompanied by a footnote at the beginning of the brief, explaining that the figures in parenthesis refer to the pages of the settled -record.

[6] Much other unnecessary matter is printed verbatim which we need not point out at this time. A conscientious observation of the admonition contained in rule 6, “Preserve everything material to the question to be decided and omit everything else,” ought to. enable appellant’s counsel to ’ condense the record very materially.

[7] Again,’ the Attorney General complains of duplications in the record or portions -of the testimony, and also- many erroneous references to the pages of the settled record. Appellant’s counsel concede these last-mentioned errors, and say that in a case of this importance they -do not feel like asking the court to permit corrections by interlineations and erasures, and ask leave to reprint the record within a reasonable time.

The striking out of the statement of the -case will, of necessity, carry with it the striking out -of the assignments of error. 'To make the argument intelligible, because of the necessary changes in page references, that should also, be reprinted.

[8] For the reasons given the printed statement of -the case and the assignments of error are stricken -out, and the appellant is given 40 days within wh-ic-h to serve and file a new brief to conform- to the rules of this -court.

[9.] Tire state being the opposing party, no terms will be imposed-.

[10] In .this connection we may observe that appellant’s counsel have followed the commendable practice, especially in a case involving a long record, of printing the statement of the case and assignments of error in oire volume, designated as “Part I” and the argument, in another volume, designated as “Part II,” the paging of the second' part being a continuation of that in the first part. ' '

WHITING, J., not. sitting.