State v. Dachtler

McCOY, P. J. [1, 2] The motion to dismiss appeal should be denied. The fact that in criminal cases the original record is sent up to this "court in all cases does not change the rule as to the substance statements that should be contained in the briefs. The brief of appellant states that defendant was duly informed against, which is sufficient where the appellant in no manner questions the sufficiency of the information. No question is raised as to any alleged irregularity occurring on the trial. The only :q|uestion raised by the assignments of error relate to the sufficiency of the evidence to sustain the verdict, which could only be considered by this court in connection with the overruling of the motion for new trial. Appellant clearly states that a motion for new trial -was made on the ground, among, others, of [191] the insufficiency of the evidence to sustain the verdict, that proper specifications of particulars were made, that the trial court extended the time for settling the record and making motion for new trial, and that the record was settled and motion for new trial made, heard, and denied, and that the adverse ruling on the motion for new trial is now assigned as error. On the face of appellant’s brief the record is 'sufficient to raise the question of the sufficiency of the evidence to sustain the verdict.' The briefs in this case are clearly within the rule announced in State ex rel. v. Pound, 32 S. D. 492, 143 N. W. 778, and Hepner v. Wheatley, 33 S. D. 34, 144 N. W. 923. The motion to dismiss appeal is therefore denied. POLLEY, J., not sitting.