State v. Vallie

MR. JUSTICE STARK delivered the opinion of the court. 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 *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, Eevised Codes of 1921, provides that in cases 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 tbe same, upon notice of at least two days to tbe adverse party, to tbe judge for settlement, within ten days after judgment has been rendered against him, unless further time is granted by tbe judge of tbe district court or by a justice of tbe supreme court, or within that period tbe draft must, upon such notice of at least two days, be delivered to tbe clerk of tbe district court for the judge. When received by tbe clerk be shall deliver it, together with any amendments proposed or objections thereto, to tbe judge or transmit it to tbe judge with such amendments and objections, as soon as may be, and when settled, tbe bill must be signed by tbe judge and filed as part of tbe record of tbe case.” In State v. Kremer, 34 Mont. 6, 85 Pac. 736, it was held that tbe statute relating to tbe settlement of bills of exception in criminal cases is mandatory and that a compliance therewith is an indispensable prerequisite to tbe consideration of such a bill by tbe supreme court. This rule has never been departed from. After tbe time allowed by statute, or order of court, for’ tbe presentation of a bill of exceptions to tbe judge, or its delivery to tbe clerk for him, has expired, and no such presentation or delivery has been made, tbe judge loses jurisdiction over tbe matter and has no authority to settle such a bill. (State v. Harder, 130 Wash. 367, 227 Pac. 501; Territory v. Flores, 3 Ariz. 215, 77 Pac. 491; Neuman v. Becker, 54 Ohio St. 323, 46 N. E. 706.) Tbe fact that counsel stipulated on December 31, 1927, that tbe 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 tbe judge with jurisdiction which be bad lost, to settle tbe bill. His certificate to tbe purported bill was a nullity. (Simpson v. Pioneer Irr. Dist., 17 Idaho, 435, 106 Pac. 1; State v. Harder, supra; Lenglesen v. McGregor, 162 Ind. 258, 67 N. E. 524, 70 N. E. 248; Morris v. Watson, 61 Ill. App. 536.) *460 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 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. (See. 11969, Rev. Codes 1921; State v. Cook, 42 Mont. 329, 112 Pac. 537; State v. Thomas, 46 Mont. 468, 128 Pac. 588; State v. Sawyer, 71 Mont. 269, 229 Pac. 734.) 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 defendant Ada Yallie 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 (Okl. Cr. App.), 244 Pac. 460; Barr v. State (Okl. Cr. App.), 231 Pac. 322.) The second point urged against the information is disposed of 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, 72 Mont. 42, 231 Pac. 390, which was a prosecution like this, for a violation of the provisions of section 3189, supra, the information charged that the sale was not made upon the original written prescription of a duly licensed physician, duly licensed to practice medicine in the state of Montana. It was held that under section 3200, supra, this allegation was surplusage and that after a sale had been proven by the state, then, if it was made upon a prescription authorized by statute, it was incumbent upon the defendant to prove that fact. 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.