Wolcott v. Bachman

Van Devanter, C. J. The petition in error contains 15 assignments of error, the first 14 of which relate to alleged errors occurring upon the trial, and the fifteenth is based upon the overruling of the motion for a new trial. Errors occurring upon the trial can only be preserved and fully brought into the record by a motion for a new trial, and, if such errors are not made the basis of a motion for a new trial in the court below, they are waived, and this court cannot consider them. Then, since it is necessary to complain of such errors in a motion for a new trial in order to ultimately bring them to the attention of the appellate court, they should not be separately assigned as error here, but will be sufficiently included in the assignment that there was error in the overruling of the motion for a new trial. This, however, is' only true as to such matters as are properly [337] grounds for a new trial, and all other errors in the rulings and decisions of the trial court -should be separately assigned as such. U. S. v. Trabing, ante, 144, 6 Pac. Rep. 721. Without considering the first 14 assignments in this case, we will inquire whether 'there was error in the overruling of the motion for a new trial. In its charge to the jury, the court gave the following instruction, over the objection of thedefendant: “If you find as a fact that this plaintiff was imprisoned in the Albany county jail upon a commitment or mittimus issued by Justice of the Peace Medium, and you find that the commitment was in pursuance of a supposed or alleged sentence of a justice of the peace sentencing this man to be imprisoned for the alleged crime of vagrancy, if you find those to be the facts, then I charge you that would constitute false imprisonment, as to Meehum, Upon its face. You are not trying Meehum. You must further find that Meehum was directed or controlled by this defendant. ” This instruction assumes that a j ustice of the peace does not have jurisdiction to commit to the county jail for vagrancy, and in so doing it palpably misstates the law. Our statute (section 3647) specially confers jurisdiction of the offense of vagrancy on justices of the peace, and authorizes the commitment of the offender; but this instruction states that such a commitment is in itself false imprisonment. To illustrate the falsity of the statement contained in the instruction, the plaintiff might have been imprisoned in the Albany county jail upon a commitment or mittimus issued by Justice of the Peace Medium, and that commitment might have been in pursuance of a sentence of a justice of the peace sentencing the plaintiff to be imprisoned for the crime of vagrancy, and still the proceedings before the justice and the imprisonment might in all respects have been in strict conformity to law. The language of the instruction does not necessarily refer to an unlawful sentence, for it is broad enough in its terms to include a sentence which is entirely lawful. The only intimation found in the instruction as to the character of the sentence therein referred to is in the use of the phrase, “a supposed or alleged sentence;” but this expression can in no manner be construed to mean, or be equivalent to, a void or unlawful sentence. As before shown, a justice of the peace has jurisdiction of the offense, which is the subject-matter, so that if he obtain jurisdiction over the person of the offender he may then lawfully impose the imprisonment. In this case, one point of contention was as to whether the plaintiff had submitted himself to the jurisdiction of the justice, and this, being a question of fact, should properly have been submitted to the jury, but by the court’s charge the jury was precluded from in any manner considering the matter of jurisdiction; for they were, in effect, told by this instruction that if they should find that the defendant directed the imprisonment of the plaintiff, then the liability of the defendant was established. Thus the court determined for the jury that the justice was without jurisdiction of the person, and that the imprisonment was unlawful. The instruction complained of was clearly erroneous as a proposition of law, and could not' have done otherwise than mislead the jury. The giving of the instruction having been complained of in the motion for a new trial, that motion should have been sustained. The judgment of the court below is reversed, and a new trial ordered. Coen, J., concurs.