268 P. 493 | Mont. | 1928
Lead Opinion
The above-named defendant was convicted of the crime of unlawfully selling and disposing of narcotics and, on February 14, 1927, sentenced to a term in the state prison and to
5. Necessity of averment negativing exception in statute upon which prosecution is based, see notes in 6 Ann. Cas. 726; 13 Ann.Cas. 364; Ann. Cas. 1913B, 135. See, also, 14 Cal. Jur. 52; 14R.C.L. 188. *458 pay a fine, and on the following day gave notice of appeal to this court.
The defendant did not make a motion for a new trial. She did not obtain an order extending time for the preparation or settlement of a bill of exceptions from the judge of the district court or a justice of this court.
On December 31, 1927, about ten and one-half months after judgment was pronounced, a proposed bill of exceptions was prepared by counsel for defendant and on that day the county attorney and counsel for defendant entered into a stipulation, which was attached to the proposed bill, as follows: "It is hereby stipulated and agreed that the foregoing bill of exceptions is true and correct and that the same may be signed, settled and allowed by the court, without notice, time therefor being hereby waived."
On January 3, 1928, the proposed bill was presented to the judge of the district court and he attached thereto his certificate to the effect that pursuant to the stipulation of the parties the bill was "settled, signed and allowed as and for the bill of exceptions for said defendant to be used on appeal herein to the supreme court of the state of Montana." The purported bill of exceptions is included in the transcript on appeal filed herein.
In his brief filed in this case counsel for the defendant has assigned eight specifications of error, of which numbers two to six are directed at the rulings of the court on the admissibility of some of the evidence introduced at the trial. These alleged errors could only be reviewed by an examination of a bill of exceptions disclosing the proceedings had at the trial.
At the outset we are met with an objection to a consideration of the bill of exceptions embraced in the record, on the ground that it was not settled and allowed within the statutory time.
Section 12044, Revised Codes of 1921, provides that in cases[1] where no motion for a new trial is made, "whenever a party desires to have a bill of exceptions settled he must *459 prepare a draft of a proposed bill and present the same, upon notice of at least two days to the adverse party, to the judge for settlement, within ten days after judgment has been rendered against him, unless further time is granted by the judge of the district court or by a justice of the supreme court, or within that period the draft must, upon such notice of at least two days, be delivered to the clerk of the district court for the judge. When received by the clerk he shall deliver it, together with any amendments proposed or objections thereto, to the judge or transmit it to the judge with such amendments and objections, as soon as may be, and when settled, the bill must be signed by the judge and filed as part of the record of the case."
In State v. Kremer,
After the time allowed by statute, or order of court, for the presentation of a bill of exceptions to the judge, or its delivery to the clerk for him, has expired, and no such presentation or delivery has been made, the judge loses jurisdiction over the matter and has no authority to settle such a bill. (State v. Harder,
The fact that counsel stipulated on December 31, 1927, that[2] the bill, as then presented, might be allowed and settled as defendant's bill of exceptions on appeal is of no avail. Counsel could not in this way re-invest the judge with jurisdiction which he had lost, to settle the bill. His certificate to the purported bill was a nullity. (Simpson v.Pioneer Irr. Dist.,
Under the authorities, we cannot take cognizance of the purported bill of exceptions. To do so would amount to holding that we have discretionary power to dispense with the law whenever we deem it proper to do so. Because we cannot consider the purported bill of exceptions, we cannot pass upon defendant's specifications of error numbered two to six, inclusive.
Specifications of error seven and eight are directed at[3] alleged errors in the court's instructions to the jury. In the absence of a bill of exceptions specifically pointing out the claimed errors, this court is without authority to consider these assignments of error. (Sec. 11969, Rev. Codes 1921; State v.Cook,
The prosecution in this case was based upon section 3189, Revised Codes 1921, which provides in part: "It shall be unlawful for any person to sell, barter, exchange, distribute, give away, or in any manner dispose of, at retail, or to a consumer, opium or coca leaves, or any compound, manufacture, salts, derivative, or preparation thereof, within this state, except upon the original written prescription of a duly licensed physician, duly licensed to practice medicine in Montana, and pursuant to all the requirements of this Act."
The charging part of the information reads: "That the said[4] defendant Ada Vallie did then and there wilfully, wrongfully, unlawfully and feloniously sell, and dispose of at retail certain narcotics, to wit: about seven (7) grains of morphine to one Harry Davis, a person over the age of eighteen."
As shown by the minutes of the trial court appearing in the transcript, in accordance with the provisions of sections 12045 and 12074, Revised Codes 1921, at the opening of the trial in the district court counsel for defendant challenged the sufficiency of this information upon the ground that the same does not state a public offense, and this is made the basis of the first specification of error. In support of this *461 specification he now urges upon the consideration of this court two points: (1) that the information does not charge the defendant with the selling of "opium, or coca leaves, or any compound, manufacture, salts, derivative or preparation thereof"; (2) that it fails to state that the sale was not made upon the original written prescription of a duly licensed physician.
As to the first ground of the objection, we deem it sufficient to say that morphine is defined as "a bitter, crystalline narcotic alkaloid contained in opium" (New Standard Dictionary), and that the courts take judicial notice of the fact that it is a derivative of opium. (Jefferson v. State (Okla.Cr.App.),
The second point urged against the information is disposed of[5] by statute. Sections 3189 to 3202, Revised Codes of 1921, were enacted as sections 1 to 12 and sections 14 and 15, inclusive, of Chapter 202, Session Laws of 1921 (page 202). Section 12 of that Act, now section 3200, Revised Codes 1921, provides that it shall not be necessary to negative any of the exceptions named in the Act in any prosecution by information thereunder and that the burden of proof of any of such exemptions shall be on the defendant.
In State v. Finley,
The above statute and decision are controlling here and it was not necessary for the information in this case to negative *462 any of the exceptions contained in the statute under which the prosecution was had.
It is our conclusion that the information states a public offense, and the judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, MATTHEWS and GALEN concur.
Addendum
In the opinion on rehearing in the case of O'Donnell v.[6] City of Butte,
It is further argued that although the court would take judicial notice of the fact that morphine is a derivative of *463 [4] opium, that would not do away with the necessity of an allegation to that effect in the information and, since none was contained therein, it does not state a public offense. This contention is disposed of by section 11854, Revised Codes of 1921, which declares: "Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information."
The petition for rehearing is denied.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, MATTHEWS and GALEN concur.
Rehearing denied June 30, 1928.
