People of the Territory v. Peacock , 5 Utah 237 ( 1887 )

BoRreman, J.:

This purports to be an appeal from a judgment of conviction for assault, rendered in the district court on appeal from a justice of the peace.

1. The appellant claims that the evidence does not support the findings of the court, but that “the large preponderance of the more reliable testimony shows that defendant, Peacock, is not guilty of assaulting said householder outside of the saloon door.” .There is nothing upon the face of the record to show that some of the witnesses were more reliable than the others. The court, sitting as-a jury, heard this case, and as such was required to weigh the evidence, and to judge of the reliability of the witnesses. Nothing is made to appear that would tend in the least degree to show that the judgment of the court as to the reliability of the witnesses was at all incorrect; and from a careful reading of the testimony it is manifest that the court was fully sustained in the finding of the defendant guilty. The whole transaction, so far as the assault was concerned, was outside of the saloon, and was an unwarranted and unjustifiable assault.

2. The affidavits for a new trial do not show any grounds for granting the motion. That which purports to be new evidence is purely cumulative, and there is no valid reason offered for the failure to produce it on the trial. The witnesses had been talking with the defendant on business both immediately before and immediately after the occurrence, and were at his side during it. He did not show any diligence in the matter.

3. We see no, error in the memorandum of costs. The defendant was justly chargeable with the attorney’s fee, and if was proper to allow it. Whether it should go to the county attorney or to the district attorney is a question between themselves, and about which the defendant has no concern. We are, however, inclined to think that the fee-bill was intended to allow the attorney’s fee to the attorney having charge of the case, without regard as to whether it was the county attorney or the district attorney.

4. It is claimed by the appellant that none of the witnesses for tbe prosecution are shown to have appeared before tbe clerk witbin tbe two days after tbe trial, and claimed tbeir fees, as required by statute. It is not necessary that tbe cost-bill should show this fact. If, on the face of tbe memorandum of costs, tbe names of tbe witnesses, tbe number of days claimed, and tbe amounts, appear, tbe court will, in tbe absence of any contrary showing, presume that the witnesses appeared witbin tbe statutory time and claimed tbeir fees. Tbe cost-bill, in tbe present case, shows all that is necessary.

Tbe record is very imperfect, but shows that tbe trial began and was proceeded with some time in September, 1886, but it does not appear when it ended. The j udgment seems to have been rendered on tbe fifteenth of December, 1886. Tbe motion for a new trial is stated to have been made on tbe same day. But one of tbe affidavits for a new trial was sworn to on tbe first of December, and filed on tbe third of December; another was sworn to and filed on tbe third of December, and the other one was sworn to on tbe ninth of December, but does not appear to have been filed. The memorandum of costs was filed on tbe twenty-ninth of November. Prom tbe confusion of dates it is impossible for this court to say whether tbe cost-bill was filed in time or not. But this objection to tbe cost-bill cannot be raised in this court for tbe first time in tbe case. It must be raised in tbe court below; but this was not done.

Tbe other objection to the cost-bill, that tbe witnesses of tbe prosecution were in attendance in two cases at tbe same time, and were allowed attendance fees in both, is not tenable. Tbe motion to re tax costs contains no such objection. It is too late to raise it in this court for tbe first time. It should nave been raised in tbe court below.

There was no error in taxing tbe whole costs against tbe defendant. Tbe fact that Thompson was tried with him •on tbe same charge, and was acquitted, will not affect the responsibility of the defendant. The costs against him would have been no more, nor would they have been any less, if he bad been charged alone and tried alone.

It is due to tbe court and to tbe counsel that we should say that tbe careless style of throwing tbe record together, as is shown in this case, greatly increases the labors of the court, and ought not to be indulged in. It is proper, also, that we should call attention to the fact that, when the statute provides that the judgment and some orders are parts of the judgment roll, it was not intended that this provision should be extended to include whatever counsel may choose to insert in place of these.

We do not perceive that there was any error in the action of the district court. The judgment and order are therefore affirmed.

. Zane, C. J., and Hendebson, J., concurred.