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only before judgment, there would be no chance for relief to any defendant, who has been sentenced on a plea of guilty, no matter what were the circumstances under which the plea was entered. Of course, such application to change the plea necessarily includes the setting aside of the judgment as a prerequisite. We are of the opinion that C. L. § 7757, does not prohibit the granting of a motion after judgment to withdraw a plea of guilty and substitute a plea of not guilty, where the application therefor is

time of his arrest appellant claimed the bar- (hold that a plea of guilty can be withdrawn rel and further stated, "If there is any fine to pay, I pay it." From the testimony of the sheriff and other witnesses, as well as from the testimony of appellant himself, it appears that he was fairly familiar with the English language. He had been at least 10 years in Latah county. His application rests mainly on the claim that he confused the words "bail" or "bond" with the word "fine." It is difficult to determine from the appellant's testimony whether or not this claim is made in good faith. He states that he expected to pay a fine and that he never ex-based on the fact that the plea of guilty was pected to come back again. After his sentence, he stated, in the presence of the sheriff and his deputy, that he would have paid $25 fine, but he thought the other was too much.

On the hearing of the motion to set aside the judgment, he testified that he understood from the prosecuting attorney that the $300 bond for his appearance, fixed by the probate court, would be reduced; "but when I found out it was too late, I had $400 to pay." He had claimed that this $300 bond was too much, and that he thought the prosecuting attorney and the judge would have a meeting and reduce it.

[1] C. L. § 7757, provides that

"The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted."

The state contends that under this law an application to withdraw a plea of guilty when not made prior to judgment comes too late and must be denied. State v. Scott, 101 Wash. 199, 172 Pac. 234; Beatty v. Roberts, 125 Iowa, 619, 101 N. W. 462; State v. Hortman, 122 Iowa, 104, 97 N. W. 981.

In these cases, under statutes similar to ours, it is held that the application to withdraw a plea of guilty must be made before judgment. In State v. Scott, supra, the court held that if the motion can be entertained at all it must be under Rem. Code, § 464 et seq., authorizing the modification or vacation of judgments within one year after their final entry, under which statutes the same liberal exercise of discretion, vested in the trial court by Rem. Code, § 2111, does not exist, but the judgment, unless absolutely void, is entitled to every reasonable intendment in its favor and will not be set aside except upon a clear showing of irregularity or fraud in its procurement and a tender and adjudication of a prima facie defense on the merits.

All the proceedings in this action were crowded into one day. In this there was no irregularity; but, viewed in connection with the statement of the case heretofore made, it is manifest that there was scant opportunity to withdraw the plea of guilty before judgment was pronounced. If we should

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not made freely and voluntarily nor with understanding of the nature of the act of defendant in making the plea. Where it is found by the court that the plea of guilty was not voluntarily and intelligently made, the motion should be granted on the theory that a plea of guilty obtained through duress, fraud, undue influence, or without understanding its true import, is in reality not a plea of guilty and will not support a judgment of conviction. Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; People v. Perez, 9 Cal. App. 265, 98 Pac. 870; State v. Coston, 113 La. 717, 37 South. 619.

[2-4] The correct rule as to permitting withdrawal of a plea of guilty is that the matter is discretionary with the trial court, that the discretion should be liberally exercised, and that a refusal of such permission can be reviewed only as to the question of whether the trial court has exercised judicial discretion as distinguished from arbitrary action. State v. Cimini, 53 Wash. 268, 101 Pac. 891; State v. Wilmot, 95 Wash. 326, 163 Pac. 742; 8 R. C. L. p. 111, § 77.

the

"Discretion," in this sense, means court's power to decide the particular matter before it according to its sense of justice and fitness; a power which, however, can only be exercised in accordance with the law, or with equitable principles, as the case may be. 2 R. C. L. p. 212, § 176.

The question of the power or right to grant the motion after judgment does not appear to have been raised in the lower court. The facts on which the motion was based were fully presented by affidavit and oral testimony. The sole question before the trial court on this motion was whether the plea was entered voluntarily and understandingly. While the record leaves us in doubt as to whether the plea of guilty was voluntarily and understandingly made, we are not convinced that the court should have found otherwise on the record, or that it abused its discretion in denying the motion, and we feel that we should be so convinced before disturbing the decision. Richards v. Richards, 24 Idaho, 87, 132 Pac. 576.

The order is therefore affirmed.

RICE and BUDGE, JJ., concur.

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the judgment and from an order overruling a motion for a new trial.

FLYNN, District Judge. Pursuant to stip-jail and to pay a fine. This appeal is from ulation of counsel, the order in this case is affirmed on the authority of State v. Raponi, 32 Idaho, 182 Pac. 855.

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At the outset we are met with a motion to strike from the files the transcript on appeal from the order denying the motion for a new trial and to dismiss the appeal from said order. One ground of the motion is that no bill of exceptions, embodying the proceedings had on the motion for a new trial, was ever made, settled, served or filed.

[1, 2] The transcript filed in this court contains copies of certain files in the office of the clerk of the court below, certified by the clerk. In this certificate, the clerk states that the transcript contains a full, true, and correct copy of all the files and records in the said action now on file and of record in the action which were used on the hearing of the motion of appellant for a new trial.

2. CRIMINAL LAW 1094 - APPEAL - DIS- The transcript does not contain anything

MISSAL-BILL OF EXCEPTIONS.

An appeal from an order overruling a motion for a new trial in a criminal case will be dismissed, where no bill of exceptions, embodying the proceedings had on the motion, has been preserved, settled, or filed.

which purports to be or was ever intended to be a bill of exceptions preserving the record. The bill of exceptions is the only statutory record provided for on appeal from an order overruling a motion for a new trial in

3. CRIMINAL LAW 1056(1), 1090(14, 19)- a criminal case. C. L. § 8051; State v. Smith,

APPEAL INSTRUCTIONS-EXCEPTIONS.

Instructions given on the court's own motion in a criminal case are not deemed excepted to, and in order to be reviewed must be excepted to and properly preserved by a bill of exceptions, or excepted to and incorporated in the reporter's transcript of the proceedings at the trial.

4 Idaho, 733, 44 Pac. 554; State v. Smith, 5 Idaho, 291, 48 Pac. 1060; State v. Baker, 28 Idaho, 727, 156 Pac. 103; State v. Maguire, 31 Idaho, 24, 169 Pac. 175; State v. l'ark, 31 Idaho, 694, 175 Pac. 813. The motion is sustained.

Assignments Nos. 1 and 3 relate to the order denying the motion for a new trial, and will not be discussed.

4. CRIMINAL LAW 1163(3) APPEAL HARMLESS ERROR. Assignment No. 2, that the court erred in Error predicated upon the admission of ev-pronouncing the judgment and sentence idence in rebuttal, upon the ground that there which it did against the defendant, not only was no dispute concerning the matters to which has not been discussed in appellant's brief, the testimony related, will be disregarded, but necessarily must stand or fall with the where appellant has made no attempt to show other errors relied upon. wherein he was prejudiced thereby, nothing prejudicial being apparent from the record, [3] Assignment No. 4 attacks the giving since this court is enjoined by statute to give | of certain particular instructions, and assignjudgment without regard to technical errors or ment No. 12 attacks generally all the instruc

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of exceptions; that the Constitution prescribes that the Legislature shall provide a proper system of appeals; and that it is a duty of the Legislature and not of the courts to indicate what the record on appeal shall contain and the method by which it shall be prepared and authenticated.

tions given. The record discloses that these [tain cases, including an appeal from an orinstructions were given on the court's own der denying a motion for a new trial, that motion. No exceptions were taken thereto. the record shall consist of a copy of the bill Instructions given on the court's own motion are not deemed excepted to, and in order to be reviewed must be excepted to and preserved by bill of exceptions, or excepted to and incorporated in the reporter's transcript of the proceedings at the trial. State v. Lundhigh, 30 Idaho, 365, 164 Pac. 690. The reporter's transcript of the evidence and proceedings had and exceptions thereto on the trial presents for review only such rulings as appear therein to have been excepted to or are by statute deemed excepted to. C. L. § 7946a. Since no exception was taken to the giving of these instructions, and they are not deemed excepted to, they cannot be reviewed. State v. Maguire, supra.

The ruling of the court attacked by assignment No. 5 was not excepted to, and falls within the same rule.

As a part of the system of appeals which the Constitution, art. 5, § 13, directs the Legislature to provide, C. L. §§ 8056 and 8070, have been enacted. They are as follows:

"8056. If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day in term, on motion of the respondent, upon five days' notice, accompanied with copies of the papers upon which the motion is founded, order it to be dis

missed."

"8070. After hearing the appeal, the court must give judgment without regard to techniAssignments Nos. 6, 7, 8, and 9 are with- cal errors or defects, or to exceptions which do out merit.

[4] Assignments Nos. 10 and 11 predicate error upon the admission of certain testimony offered in rebuttal, on the ground that there was no dispute concerning the matters to which the witnesses testified, and that the court should have invoked the rule of strict rebuttal. It is not apparent how appellant could have been prejudiced by the introduction of evidence concerning matters over which there was no dispute, nor has he sought to enlighten the court upon this point, nor endeavored to show wherein or in what manner he was prejudiced thereby, if at all. This court is enjoined by statute to give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. C. L. § 8070; State v. Gruber, 19 Idaho, 692, 115 Pac. 1; State v. Fondren, 24 Idaho, 663, 135

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MORGAN, C. J. (dissenting). The appeal from the order denying the motion for a new trial should be decided on its merits.

In reaching a conclusion that the foregoing opinion is violative of our system of appeals in criminal cases, I am not unmindful that C. L. § 7942, provides for taking an exception to a decision granting or denying a motion for a new trial; that section 7944 outlines the procedure to be followed in the preparation, service, and settlement of a bill of exceptions; that section 8051 provides in cer

not affect the substantial rights of the parties." This court, in State v. Wright, 12 Idaho, 212, 85 Pac. 493, commenting on the latter provision said:

"This section has been time and again invoked by this court against defendants who were relying on mere technical objections, and we can see no reason why the same statute is not as clearly applicable to and enforceable against the state when it urges a mere technical variance from the statutory requirements which appears neither to have misled nor prejudiced the rights of the people in any respect whatever."

The purpose of the requirement that a proposed bill of exceptions be served is to give counsel an opportunity to offer amendments thereto, and the reason for having it settled is to insure that it shall speak the truth. It is true the transcript in this case contains nothing labeled "Bill of Exceptions"; but the only matters which could have been properly incorporated in such a document are the motion for a new trial, affidavits submitted in support of and in opposition thereto, and the decision thereon. These matters all appear in the transcript which was regularly served upon counsel for the state, and the copies of documents therein contained are certified by the clerk of the district court to be full, true, and correct. This record contains everything a bill of exceptions in a case of this kind should contain, and it is not even suggested it is not authentic, nor that the failure to prepare, serve, and procure to be settled a bill of exceptions, other than this transcript, has in any way misled or prejudiced the rights of the state. In dismissing this appeal the court has disregarded the mandates of C. L §§ 8056 and 8070.

(32 Idaho, 325)

(182 P.)

O. Sewell, and denied as to appellant Rural RURAL HIGH SCHOOL DIST. NO. 1 et al. High School District No. 1. V. SCHOOL DIST. NO. 37 et al.

(Supreme Court of Idaho. June 26, 1919.)

1. SCHOOLS AND SCHOOL DISTRICTS GOVERNMENT-REPEAL OF STATUTE.

46

Fred E. Butler, of Lewiston, for appellants. Eugene O'Neill and Lawrence E. O'Neill, both of Lewiston, for respondents.

RICE, J. A petition was presented to the Laws 1911, c. 159, §§ 194 and 195 (section board of county commissioners of Nez Perce 195 now being Comp. Laws, § 38:311), which county, seeking segregation of school disrepeal all acts or parts of acts in conflict there-trict No. 37 from rural high school district with, and declare that said act is intended to constitute a complete Code and system for the government and regulation of common schools without reference to or aid from other laws, do not repeal statutes providing for review on appeal of actions of boards of county commissioners relating to school questions.

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151(2)

No. 1. The prayer of the petition was granted by order of the board, and the high school district appealed therefrom to the district court. After a hearing, the district court entered final judgment affirming the order of the commissioners, whereupon the high school district and Glenn O. Sewell, who represents in the notice of appeal that he is a taxpayer residing in Nez Perce county, state of Idaho, and rural high school district No. 1, appealed to this court. Sewell made his first appearance in the case by the notice of appeal to this court. The case is now before this court on motion to dismiss the appeal; the motion being based upon the ground, first, that the order of the commissioners is nonappealable, and, second, that the appellants have no appealable interest.

3. APPEAL AND ERROR APPEAL FROM COUNTY BOARD-"PARTY AGGRIEVED." A taxpayer of a school district who has failed to appeal to the district court from an order of the board of county commissioners af- [1, 2] The segregation was sought under fecting such district, or to appear in the district and by authority of what is now C. L. § 38:court at any stage of the proceedings, is not 243. Respondents contend that Sess. Laws a party aggrieved within the meaning of Comp. 1911, c. 159, §§ 194 and 195, p. 557 (section Laws, § 4802, and cannot appeal to this court from the final judgment of the district court. 195 now being C. L. § 38:311), preclude an [Ed. Note.-For other definitions, see Words appeal from any action of the board of and Phrases, First and Second Series, Aggriev-county commissioners taken on the petition. ed Party.]

These sections read as follows:

"Sec. 194. All acts or parts of acts in con

4. APPEAL AND ERROR 497(2)-AGGRIEVED flict with this act are hereby repealed. PARTY.

On an appeal to this court, the record itself must disclose that one assuming to take an appeal is an aggrieved party and has a right to appeal to this court.

"Sec. 195. This act is intended to constitute a complete code and system for the government and regulation of the common schools of Idaho, and is intended to be complete in itself, without reference to or aid from other laws; and all acts or parts of acts which modify or

5. APPEAL AND ERROR 151(4)-ORDER OF tend to modify this act or any part thereof shall COUNTY BOARD-"PARTY AGGRIEVED."

Where the board of county commissioners makes an order, under Comp. Laws, § 38:243, segregating a school district from a rural high school district, the rural high school district is a party aggrieved in contemplation of sections 1950 and 4802, and may appeal from the said order of the district court and from the judgment of the district court to this court.

Appeal from District Court, Nez County; Wallace N. Scales, Judge.

be disregarded by the courts in the construction of this act."

It is argued that by virtue of the foregoing sections, since no appeal from the action of the board of county commissioners in the matter under consideration is provided for in the act constituting the School Code, C. L. § 1950, which provides generally for appeals from the actions of boards of county Perce commissioners, is void in so far as this appeal is concerned; that there being no authority in law for the appeal taken in the first instance to the district court, there is no power in this court to hear the appeal from the district court.

Petition to the Board of County Commissioners for segregation of School District No. 37 from Rural High School District No. 1. From an order granting the petition Rural High School District No. 1 appealed Appeals from actions of boards of county to the district court, and from its judgment commissioners, taken under different sections affirming the order Rural High School Dis- of this chapter, have been entertained by trict No. 1 and Glenn O. Sewell appeal. this court in the cases of Wood v. IndependMotion to dismiss appeal granted as to Glennent School Dist. No. 2, 21 Idaho, 734, 124

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Pac. 780; Fenton v. Board of County Com'rs, is a party aggrieved, within the meaning of 20 Idaho, 392, 119 Pac. 41; Clay v. Board C. L. § 4802, the motion to dismiss must be of County Com'rs, 30 Idaho, 794, 168 Pac. sustained as to him. 667, and Wheeler v. Board of County Com'rs, It is urged that the high school district 31 Idaho, 766, 176 Pac. 566. has no appealable interest, because the statIn Wood v. Independent School Dist. No. ute under which the segregation was sought 2, supra, it is said:

"It is a general rule of law that in construing a statute the court should take into consideration the reason for the law, that is, the object and purpose of the same, and the object in. contemplation of the legislative body in enacting the same. Greathouse v. Heed, 1 Idaho, 494; Idaho Mut., etc., Co. v. Myer, 10 Idaho, 294, 77 Pac. 628; Barton v. Schmershall, 21 Idaho, 562, 122 Pac. 3S5; 26 Am. & Eng. Enc. of Law (2d Ed.) 597; 36 Cyc. 1106-10."

The sections relied upon by respondents have no reference to appeals from actions of boards of county commissioners or to court procedure. What they aim to do is to repeal all laws, enacted prior thereto, which conflict with the provisions of the School Code in relation to matters provided for in the School Code, and in general having relation to the creation of school districts, the government, management, and support thereof, and of the public schools.

An appeal lies in this case under the provisions of C. L. § 1950.

It is next contended that these appellants have no appealable interest. C. L. 1950, reads in part as follows:

provides that the petition for segregation must show that "it is to the best interests of the said regularly organized school district to be segregated from the rural high school to which said regularly organized district is joined ;" that it is not contemplated by this law that the interest of the rural high school district from which separation is sought, or of any taxpayer therein and not a resident of the district seeking separation, can be considered.

This position does not present a sufficient reason for dismissing the appeal. Without assuming to express an opinion upon the soundness of this position as a matter of law, many other considerations might be urged as reasons why the judgment should be reversed. A rural high school district has a right to insist that any segregation of its territory shall be accomplished by legal methods, and has a right to have the proceedings for such segregation reviewed by this court on proper appeal.

The motion to dismiss the appeal will be granted as to appellant Sewell, and denied as to appellant rural high school district No. 1.

MORGAN, C. J., and BUDGE, J., concur.

"Sec. 1950. * An appeal may be taken from any act, order or proceeding of the board, by any person aggrieved thereby, or by any taxpayer of the county when any demand is allowed against the county or when he deems any such act, order or proceeding illegal or LEYBA v. ALBUQUERQUE & CERRILLOS prejudicial to the public interests. COAL CO. (No. 2203.)

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1919.)

(Syllabus by the Court.)

(25 N. M. 308)

[3] Assuming that Sewell is a taxpayer (Supreme Court of New Mexico. June 28, residing within rural high school district No. 1, he might have appealed from the order of the board to the district court. Not having so appealed, his qualification must be determined by C. L. § 4802, which relates to appeals from the district court to the Supreme Court, and which provides that "any party aggrieved may appeal in the cases prescribed in this Code."

MASTER AND SERVANT 297(2)—TRIAL
359(1)-REVIEW-GENERAL AND SPECIAL

VERDICTS.

Where a general and a special verdict of a jury are consistent and reconcilable, they will both be allowed to stand, and a judgment based thereon will not be disturbed upon appeal.

Appeal from District Court, Santa Fé County; Reed Holloman, Judge.

14, 5] In the cases of Washington County Abstract Co. v. Stewart, 9 Idaho, 376, 74 Pac. 955, and State v. Eves, 6 Idaho, 144, 53 Pac. 543, it was held that a person not a party to the record may be an aggrieved Action by Juan B. Leyba against the Alparty within the meaning of the section last | buquerque & Cerrillos Coal Company. Judgabove quoted, and have the right of an ap- ment for plaintiff, and defendant appeals. peal to this court. It is clear, however, that Affirmed. the record must disclose the facts showing that one attempting to appeal to this court is an aggrieved party within the meaning of the statute. The court cannot receive evidence outside of the record to determine this question. The record failing to disclose that Sewell court for a second time. The former case

Reid, Hervey & Iden, of Roswell, for appellant.

Catron & Catron and A. B. Renehan, all of Santa Fé, for appellee.

RAYNOLDS, J. This case is before the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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