State ex rel. Gibson v. Cornwell

Potter, Chirr Justice. This is a proceeding brought in this court for the determination of certain questions arising upon a bill of exceptions taken by the County and Prosecuting Attorney o-f Albany County in a criminal case heard and determined in the District Court of that County, wherein one Bailey Corn-well was defendant. The authority for such a proceeding-in this court is found in Sections 5378 to 538* of the Revised Statutes of 1899, which read as follows: “Sec. 5378. The prosecuting attorney may take exceptions to any opinion or decision of the court during the prosecution of the cause; and the bill containing the exceptions upon being presented shall; if it be conformable to the truth, be signed and sealed by the court, which shall be made a part of the record, and be in all respects governed by the rules established as to bills of exceptions in civil cases, except as herein provided.” “Sec. 5379. The prosecuting attorney may present such bill of exceptions to the Supreme Court and apply for permission to file it with the clerk thereof, for the decision of — 534 — such court upon the points presented therein; but prior thereto he shall .give reasonable notice to the judge who presided at the trial in which the bill was taken, of his purpose to make such an application, and if the Supreme Court shall allow such bill to be filed, such judge shall appoint some competent attorney to argue the case against the prosecuting attorney, which attorney shall receive for his. service a fee not exceeding one hundred dollars, to be fixed by such court, and to be paid out of the treasury of the county in which the bill was taken.” “Sec. 5380. If the Supreme Court shall be of the opinion that the questions presented should be decided upon, they shall allow the bill of exceptions to be filed and render a decision thereon.” “Sec. 5381. The judgment of the court in the case in which the bill was taken shall not be reversed nor in any manner affected, but the decision of the Supreme Court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterwards arise in the state.” The application for permission to file the bill was filed in this court on December 28, 1904, by Thomas H. Gibson, the then prosecuting attorney for Albany County, who had, in that capacity, taken the exceptions and procured the bill. Said application was granted by this court on December 29, 1904, and the bill was filed on that date with the clerk of this court. At the same time and in the same proceeding the prosecuting attorney filed a petition in error, and an application for an order directing the clerk of the District-Court to transmit the original papers in the cause wherein the bill of exceptions was taken, together with a transcript of the journal entries. The order for such papers and transcript was thereupon issued by the clerk of this court, and in response thereto said papers and transcript were transmitted, and were filed in this proceeding January 12, 1905. The original papers so transmitted seem to contain all the papers filed in the cause in the District Court. — 535 — excepting the bill of exceptions aforesaid, which had been previously presented to the court and file.d with the clerk, as above stated. The transcript of the journal entries exhibits an order of January 4, 1905, entered by the judge who presided at the trial in the District Court, reciting the fact of service upon said judge of a notice of the purpose of the prosecuting attorney to apply to the Supreme Court for permission to file his bill of exceptions, and the fact that the Supreme Court had allowed the bill to be filed and had so notified said judge, and thereupon appointing H. V. S. Groesbeclc to argue said cause in the Supreme Court against the prosecuting attorney, and fixing his fee for such service. Briefs in support of the exceptions were filed by the Attorney General November 17, 1905. Thereafter counsel who had been appointed to argue in opposition thereto filed a motion to strike the petition in error and the bill of exceptions from the files, and to dismiss the cause in this court, on several grounds. The hearing was had upon that motion. It will be unnecessary to consider any of the grounds of the motion relating particularly to the petition in error, for the reason that, upon what we conceive to be a more substantial ground than any specifically suggested in the motion, the petition in error should be stricken from the files. In the statute above quoted providing for a proceeding of this character there is no provision or authority for filing such a paper or pleading, nor is authority therefor to be found in any other statute applicable to such proceeding. To the extent and for the purpose explained in the statute, the jurisdiction of this court is invoked through the filing of the bill of exceptions; and a petition in error is neither necessary nor proper. The statute under which this proceeding was instituted was enacted when Wyoming' was a territory, and a reference to the record in the two reported cases decided pursuant to its provisions by the Supreme Court of the territory discloses that a petition in error was not then deemed essential to the court’s juris — 536 — diction in such a proceeding. (Territory v. Conley, 2 Wyo., 324; Territory v. Nelson, 2 Wyo., 329.) A petition in error was not filed in either of those cases. And it appears that the court assumed jurisdiction upon the filing of the bill. As the statute stood with reference to criminal appeals at the time of the revision of 1899, it was provided that in all criminal cases, within one year after the rendition of final judgment, writs of error, on good cause shown, might be allowed by the Supreme Court or any justice thereof on the application of the defendant. (R. S. 1899, Sec. 5422.) There existed no provision for a writ of error on the application of the state or a prosecuting officer. Section 5422 was amended in 1901, so that it now provides that in all criminal cases after final judgment, and within one year after the rendition of the judgment, proceedings to vacate, modify, or annul such judgment, may be begun in the Supreme Court by petition in error in the same manner as is provided for taking civil cases to that court. (Laws 1901, Ch. 63, Sec. 1.) That is the only provision or authority for a petition in error in criminal cases; and it is authorized only in a proceeding' to vacate, modify, or annul the final judgment. The statute under which the present proceeding is brought expressly declares that the judgment shall not be reversed nor in any manner affected, but that the decision upon the questions presented in such a proceeding shall determine the law to govern in any similar case which may be pending at the time or may afterwards arise. No provision is made by this or any other statute for an appeal by the state, or any other proceeding- on behalf of the state, to vacate, or modify the judgment rendered in a criminal case. The statute in question very clearly sets forth its purpose and defines the power and jurisdiction of the court in the premises. No doubt the petition in error was filed more out of abundant caution than from a belief in its necessity; but the title given to the cause in this court would seem to indicate some misconception of the character of the proceed — 537 — ing. In the petition in error, as well as the other papers, including the notice to the District Judge of the purpose of the prosecuting attorney to apply for leave to file the bill of exceptions, the case is entitled as follows: “The State ex rel. Thomas H. Gibson, County and Prosecuting Attorney for Albany Comity, Wyoming, Plaintiff in Error, v. Bailey Cornwell, Defendant in Error.” It was improper so to entitle the case in this court. In the case at bar the District Court sustained a demurrer to the information on the ground that the act charged was not a crime under the laws of this state, and the defendant was thereupon discharged. It is clear that the case was settled so far as the defendant is concerned, and that no decision or order of this court in the proceeding could reinstate the case, so as to require the defendant to again answer to the same information, even if we should come to a different conclusion from that announced by the learned District Judge. The necessity therefore of bringing the defendant into this court in this proceeding by a petition in error, or by any process ordinarily issued upon such a petition is not perceived. The statute proceeds upon the theory that it is not necessary, and, provides for the appointment of counsel at public expense to oppose the exceptions in this court. While the District Judge may appoint as such counsel the' attorney who represented the defendant in the District Court, it is clear that he is not required to do so. We think it evident that in this court the case should bear the same title as that borne by the bill of exceptions, which of necessity will be the title by which the cause was known in the District Court; and in previous cases under this statute that practice has been followed. (Terr’y. v. Conle supra; Terr’y. v. Nelson, supra; State v. Boulter, 5 Wyo., 236.) Upon the ground, therefore, that it is not a necessary or proper paper in this proceeding, the petition in error will be stricken from the files. It follows from what has been said that the failure to have a summons in error issued does not constitute a defect in the proceedings. The issuance of such process is not required. — 538 — The principal objection urged to the bill of exceptions is that the bill is not sealed as required by Section 5378/ and we think the objection is-well taken. The preceding section authorizing a defendant in a criminal case to make his exceptions matter of record by bill originally required such bill to be both signed and sealed by the court, but it was amended in 1890. in that respect so- that since then a defendant’s bill has been required to be only signed by the judge; the provision as to sealing being eliminated. (R. S. 1887, Sec. 3306; R. S. 1899, Sec. 5577.) No change in this particular, however, has been made in the provisions of the statute relating to a bill taken by the prosecuting attorney; and we possess no authority to make such a change. It is unnecessary perhaps to suggest that without this, or a similar statute, there would exist no. substantial reason for the taking of a bill of exceptions by a prosecuting officer, there being no other law allowing an appeal by the state in criminal cases. It is only upon a compliance with the provisions of the statute in question that this court obtains jurisdiction to review any ruling of the District Court adverse to the state in criminal prosecutions. It is essential to our jurisdiction therefore, in such a case, that the bill be taken and authenticated, substantially at least, in the manner required by the statute. The bill before us is not sealed, and, for that reason, it is in our opinion ineffective to confer jurisdiction upon this court to consider and determine the questions presented by the alleged exceptions. We should be as certain of our jurisdiction in a case of this character as in any other, for, although the judgment in the particular case could not be affected, our decision upon the questions presented would, by express authority of the statute, govern in similar cases pending at the time thereof or afterwards arising. In this connection, the Attorney General suggests that, as the exception involved was taken to the ruling of the court sustaining a demurrer to the information, it was a matter of record without a bill. But it is obvious, we think, that the — 539 — bill in a case like this not only serves to preserve in the record matters which otherwise would not be in the record, but it is the basis of the jurisdiction of this court. It is not perceived that we would have authority to decide any question arising upon exceptions of the prosecuting attorney in a criminal case, without a bill of exceptions containing the same, taken and filed as prescribed by the statute. In the concurring opinion in the case of Territory v. Nelson, supra, Mr. Justice Peck expressed a doubt whether exceptions not ordinarily appropriate to or presentable by a bill, could be reviewed at all by the Supreme Court under this statute. That learned judge was clearly of the opinion that the right of review depended upon a bill duly allowed and filed, and that without a bill there would be no jurisdiction. In view, however, of the double purpose of the bill, we are inclined to the opinion that though the exceptions would otherwise appear on the record, they may be embraced in a bill taken by the prosecuting attorney in criminal cases, as a basis for a decision by this court upon the questions thereby presented pursuant to the statutory provisions aforesaid. The bill must be stricken from the files. The result is that nothing is left for our consideration, and the cause mus. therefore be dismissed. It is unnecessary perhaps to consider the other grounds urged in support of the motion; but we deem it advisable and not improper to state our opinion respecting the contention made in support of the motion to dismiss that it is not the duty or right of the Attorney General to represent the state in this kind of proceeding. The point was urged in connection with the objection that the rules had not been complied with as to the filing of briefs on behalf of the plaintiff. The office of Attorney General had not been created at the time of the enactment of the statute above quoted authorizing this proceeding, but it was then the duty of the County and Prosecuting Attorney to appear for the state in the Supreme Court in all criminal appeals. The later act which provided for the office of Attorney General requires that — 540 — officer to represent the state in all criminal cases in this court. (Rev. Stat of 1899, Sec. 99.) A case brought here upon exceptions of the prosecuting attorney is unquestionably we think a criminal case within the meaning of the statute defining the duties of the Attorney General, and it is our opinion that it was not only the right, but the duty, of such officer to appear in this court in such a proceeding on behalf of the state. Though the judgment in the court below is not to be affected, the case, at least for the purposes set forth in the statute, continues, and the decision may not only affect many other pending cases, but must govern in future cases of like character; and it is evident that the state is not only a party to the case itself, but is directly interested in the result in this court. Because of the defect in the bill of exceptions above set out we are constrained to dismiss the cause. Beard, J., and Scott, J., concur.