On Motion for Rehearing , 2 Okla. Crim. 71 ( 1909 )

The motion for a rehearing in this case is based upon alleged irregularities in the manner in which the grand jury was drawn, which presented the indictment. This matter was not presented in the original brief, except in the most general terms. No attempt was made to point out any irregularities. No argument was made, and no authorities were cited or discussed. This court has repeatedly declared that it is the duty of counsel, in presenting their cases upon appeal, to place their fingers upon the place that hurts, and clearly point out the special error complained of, and show that it was prejudicial to their clients. Unless this is done, the alleged errors will be treated as waived. Our views upon this question are ably presented by Mr. Justice Dunn in Ferguson et al. v. Union National Bank, 23 Okla. ___,99 P. 641.

Speaking of the brief filed in that case by the appellant, Justice Dunn says:

"This document, omitting the caption and signature, is less than a page in length, and is merely a recitation and statement of the things which counsel contends took place in the court below, followed by a statement that the court erred in ruling on certain of these matters, in addition stating that the presiding judge before whom the case was tried was not the judge of the district, and had no jurisdiction to try the cause. No authorities are cited in support of any of the propositions stated; neither is any argument presented to sustain them, nor any effort whatever made, other than the simple statement mentioned, to show that error was committed. This is not such a brief as is contemplated should be filed in a case by counsel in support of a petition in error in this court; and, while we would probably not dismiss the petition in error on such a brief of our own motion, yet when the question is squarely raised and presented, as it is in this case, by a motion on the part of the defendant in error to dismiss the petition in error for want of a sufficient brief, we cannot ignore the rights of such movant by failing to consider its motion, or, if found to be well taken, deny it, especially where no motion is made to supplement the purported brief filed.

"The Supreme Court of the territory of Oklahoma in the case of Penny v. Fellner, 6 Okla. 386, 50 P. 123, had this to say with reference to the requirements expected of a party filing a brief in this court: ``This court will not examine the record filed herein in search of prejudicial errors which are not clearly pointed out and insisted upon in the brief of the complaining party, but all such errors (if any) will be considered as waived.' The standard authority on procedure in appellate courts, entitled ``Appellate Procedure,' by Elliott, at section 438, defines a brief, as understood under our system, as follows: ``A brief is a written presentation of the questions involved in a forensic controversy, and of the matters of fact and of law which demand investigation. The primary object is to convey information to the court, and this cannot be done without clearly stating the manner in which the controverted points arise, the facts which constitute the ground-work of the legal dispute, and the governing propositions of law. A subsidiary object is to convince the court where the law and justice of the case lie. In every well-prepared brief will be found a concise and clear statement of the manner in which the questions arise, a succinct and methodical statement of the facts, and a perspicuous array of arguments and authorities.' Its requirements are set out in sections 444 and 445, as follows: ``It is essential that all points be made in the brief, and properly made; if not so made they are waived. * * * It is not enough to assert in general terms that a ruling of the trial court is wrong; a fair effort must be made to prove that it is wrong or the point will not be considered as having been made. Counsel cannot make a point in an appellate tribunal by a naked general assertion, for such an assertion will not be heeded. * * * But, in order to secure so much as notice of the point stated they must support it by a fair effort, adducing arguments and, if they can, citing authorities. A bare designation of a ruling as erroneous, without discussion, is not sufficient to entitle counsel to successfully insist that he has made a point. * * * Where a ruling is asserted to be erroneous the party making the assertion must overcome the presumption that it was correct, and this he cannot do otherwise than by specifying the particular error which invalidates the ruling. This rule is required for the assistance and enlightenment of the court. Common fairness to opposing counsel likewise demands it, for they have a right to know just what particular point they are to meet. It is also required by the analogous cases which declare that objections wherever presented must be specific.'

"From the foregoing it will be readily seen that the so-called brief filed in this case in no particular meets the requirements, and the motion of the defendant in error to dismiss the petition in error is accordingly sustained."

Ordinarily errors waived in the original submission of a cause cannot be reviewed upon a motion for rehearing. No reasons are given why this should be done in the case at bar.

The motion for a rehearing is therefore denied.