State v. Squires , 15 Idaho 327 ( 1908 )

AILSHIE, C. J.,

Dissenting. — Owing to the facts and circumstances peculiar to this case, I do not think it falls within the rule as announced in State v. Miles, 11 Ida. 784, 83 Pac. 697, and Corker v. Elmore County, 11 Ida. 787, 84 Pac. 509. On the oral argument, at the hearing on this motion, it was admitted that the transcript was served on the prosecuting attorney of Latah county; it was also admitted that a substantial copy of the transcript was mailed to the attorney general’s office by Mr. Stillinger, the prosecuting attorney, in due time. It was further admitted that the attorney general had procured a copy from the clerk of this court for his use in preparation of the case. It is a further fact of which we take notice, that this ease was filed during the session of the March term of this court at Lewiston, and the attorney general’s office was not represented in court during that term. While the statute does not require the attorney general to be in attendance at the terms of court except when he has business before the court, still, under rules 35 and 36 (Idaho Digest, p. XIII) of this court, a defendant has a right to have a criminal ease placed on the calendar at any time and no notice other than in open court is required to be given. In view of these facts and circumstances, it seems to me that under the directions of sections 8056 and 8070, Rev. Stat., the court should not dismiss the appeal in this case.