Territory of Montana v. Jinks

8 Mont. 135

• Court: Montana Supreme Court
• Decided: July 15, 1888
• Status: Published

Opinion

Liddell, J.

The defendant was arrested and tried before a magistrate upon an affidavit charging him with unlawfully offering grouse for sale in the city of Butte and county aforesaid. The prosecution and defense agreed that the accused offered prairie chickens for sale, but that they were killed in the State of Kansas, where they were bought by the defendant. "Upon this agreed statement of the material facts, the case was tried, and the magistrate incontinently discharged the accused, because, as stated in his judgment, the defendant was not guilty of the offense charged, or of any other; whereupon the county attorney, without even having reserved any bill of exceptions to a ruling of the magistrate, in accordance with the requirements of section 527 of the Criminal Practice Act, appealed the case to the District Court, where it was again tried, without a jury, upon the same agreed statement of facts, and a judgment rendered on the merits discharging the defendant. After the acquittal of the accused, the county attorney prepared and filed a bill of exceptions to the judgment of the District Court, for the reason that “the public offense, as charged in the complaint, is fully supported by the facts appearing in the statement.” We have carefully examined the judgments of both the magistrate and District Court, and conclude that they are both judgments upon the merits, and in which no question of law, pure and simple, was presented for their consideration. Unless a bill of exceptions had been taken to some ruling of the magistrate on a question of law, the Territory had no right to appeal the case to the District Court. Section 527 of the Criminal Practice Act in terms says: “When the district attorney, or any attorney acting as prosecutor, has taken exceptions to the ruling of the court on any question of law, the Territory may appeal the same to the District Court.” And in section 526 we find the manner of taking such exceptions to be the same as in trials in the District Court. Manifestly these sections limit the right of appeal on the part of the Territory to questions of law reserved by bill of exceptions to rulings of the court, as in the practice in the District Court. Section 340 of the Criminal Practice Act points out the manner of excepting, and the character of the ruling or decision of the court which may be excepted to and appealed from. . It particularly says that the prosecution “ may except to any decision of the court upon a question of law, in admitting or rejecting witnesses, or testimony, or in deciding any question of law not a matter of discretion, or in giving or refusing any instructions to the jury when the case is finally submitted to them.” We know of no law which gives the Territory the right to appeal a case from the magistrate’s to the District Court, unless a question of law has been reserved by bill of exceptions in the manner prescribed by law. ISTor have we been referred to any authority whatever which allows the Territory to take a bill of exceptions to the judgment of the District Court on the merits in favor of the defendant. Uo bill of exceptions having been taken by the Territory to any decision or ruling of the magistrate on a question of law, as prescribed by section 340 of the Criminal Practice Act, no right of appeal existed in favor of the Territory, and the District Court was without any jurisdiction to review the judgment of the magistrate’s court. Inasmuch as the District Court is without jurisdiction, we are without authority to entertain the appeal, which is hereby dismissed, at cost of appellant. This decision disposes of the case of Territory v. Bernheim, on appeal from Silver Bow County, now pending in this court.

Judgment affirmed.

McConnell, C. J., and Bach, J., concur.