Seng v. State

Beard, Chief Justice. The plaintiff in error, Joseph Seng, was convicted in-the District Court of Uinta County of the crime of murder in the first degree and sentenced to suffer death by hanging. From that judgment he brings the case here on error. The case was submitted to this court on briefs without oral argument; and in his brief the Attorney General calls the attention of the court to the fact that the bill of exceptions does not contain any motion for a new trial or the evidence in the case;, and he insists that in this state of the record there are no questions presented for consideration by this court. An examination of the bill of exceptions shows that to be the condition of the record. The hill does not contain the motion for a new trial. It recites that “defendant filed a motion for a new trial, which was by the court overruled, to which the defendant at the time excepted.’’ That is the only statement in the bill with reference to a motion for a new trial. The motion for a new trial not being contained in the bill of exceptions, never became part of the record, and no exceptions required to be presented to the court below by such motion are properly here for'consideration. Rule 13, of this court, 104 Pac. XIII; Comp. Stat. 1910, p. 1464, provides, “Nothing which could have been properly assigned as ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion- was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill-of exceptions.” (Bank of Chadron v. Anderson, 7 Wyo. 441, 53 Pac. 280; Freeburgh v. Lamoureux et al., 12 Wyo. 41, 73 Pac. 545; Koppala and Lampe v. State, 15 Wyo. 398, 89 Pac. 576, 93 Pac. 662; Davis v. Ogden, 17 Wyo. 207, 97 Pac. 1074.) The bill, as signed by the trial judge, consists of nine pages, under separate cover bearing the filing mark of the clerk of the district court, and attached to 'it,- but not referred to in the bill or in any way identified or authenticated [226] by the court or judge, is what purports to be a transcript of the shorthand notes taken by the court reporter; but such transcript, even if it had been incorporated in ti\e bill, does not purport to contain all the evidence. The only way this court can know what the evidence in any case was, is by having it incorporated in the bill of exceptions and properly authenticated by the court or judge as the evidence in the case. The certificate of the court reporter is insufficient for that purpose. (Fishback v. Bramel, 6 Wyo. 293, 44 Pac. 840; France v. First Nat’l Bank of Omaha, 3 Wyo. 187, 18 Pac. 748; Koppala and Lampe v. State, 15 Wyo. 398, 89 Pac. 576, 93 Pac. 662.) Each and all of the alleged errors complained of and argued in the brief of counsel for plaintiff in error are matters occurring on the trial and which-must be presented to the court below by a motion for a new trial in order to have them reviewed- here. On the imperfect record- presented we might well dispose of the case without further consideration. But the case being an important one, involving the life of the plaintiff in error, we have carefully examined not only the record properly before us, but also all of the papers on file, including the purported evidence, and we fail to find anything therein that leads to the conclusion that he did not have a fair trial. The instructions of the court given to the jury were as favorable to him as the law would warrant; and assuming that the transcript of the court reporter’s notes contains the evidence and all the evidence in the case, we are satisfied that it fully supports the verdict of the jury and the judgment rendered thereon. We are, therefore, of the opinion that the judgment of the District Court should be and the same is affirmed. And now this court appoints Friday, the 24th day of May, in the year of our Lord 1912, for the execution of the sentence pronounced by the court below. Affirmed. Scott and PoTTER, JJ., concur.