State v. Morrison , 34 Mont. 75 ( 1906 )

MR. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal by the defendant from a judgment of conviction of the crime of manslaughter and from an order denying defendant’s motion for a new trial.

1. Appellant has attempted to set out in her brief thirty specifications of error. The bill of exceptions used in this case, which is called “a statement on motion for a new trial,” being that which was used on motion for new trial, cannot be by us considered. The point is raised by the respondent and is well taken, to-wit: That it does not appear that any notice was given to the county attorney as to the time when the draft of the bill would be presented to the judge for settlement, and it does not appear that the state in any way waived notice. (State v. Kremer, ante, p. 6, 85 Pac. 736.)

2. Specifications of error 1 to 17, inclusive, as set out in appellant’s brief, refer to alleged errors of the court in respect of the evidence and the introduction thereof. The evidence not being before us, having been stricken out as aforesaid, these specifications cannot be considered. The remaining specifications, 18 to 30, inclusive, pertain to the giving and refusing of instructions. As to them it is sufficient to say that the brief of appellant fails to comply with Rule X, subsection 3b (30 Mont, xxxviii, 82 Pac. x), requiring that instructions shall be set out in the specifications in totidem verbis; and for this reason, as heretofore so frequently said by this court, defendant has not the right to have these specifications considered.

• 3. There is not any record of the action before this court in the transcript. The transcript on page 1 commences with “Statement on Motion for a New Trial,” and contains, with the evidence and other things, what is certified in the body of the statement to be the “judgment-roll;” What is called the statement is, as we have seen in the first paragraph of this opinion, stricken out. Therefore there is not anything before the court in the form of a record or transcript. Neither the “record of the action” in a criminal case (as defined in section 2229, Penal Code), nor the judgment-roll in a civil case, can be brought up in the body of a bill of exceptions.

4. Notwithstanding the condition of the transcript, as before set forth, we have examined into the matter of the alleged specifications of error, so far as we have been able to do it, from 18 to 30, inclusive, on the appeal from the judgment, assuming that “the record of the action,” if it were before us, would be identical with the “judgment-roll” as contained in the bill of exceptions, and find that several of the instructions given and complained of were given at the request of the defendant, and therefore, however erroneous or prejudicial they may be, she may not object to them. We find, further, as to the rest of the instructions given and refused and cited as error, that the court did not commit any error prejudicial to the defendant.

The judgment and the order are affirmed.

Affirmed.

Mr. Cheek Justice Brantly and Mr. Justice Holloway concur.