Opinion
No. 9299.
Decided May 14, 1953.
Appeal from the Fourth Judicial District Court, Missoula County.
Mr. Joseph M. Goldman, Missoula, for Relator.
Mr. John A. Forsythe, County Attorney, Missoula, for Respondent.
This matter having this day regularly come before this court for hearing pursuant to an order to show cause duly issued herein on May 5, 1953, and respondents' return to said order to show cause thereafter made, Joseph M. Goldman, Esq., appearing as counsel for the relator William Toner and John A. Forsyth, Esq., county attorney of Missoula county, appearing as counsel for the respondents, and it appearing that certain portions of relator's proposed bill of exceptions have been stricken on order of the respondent judge presiding in that certain cause entitled State of Montana v. William Toner, defendant, wherein a judgment of conviction on a jury's verdict was entered against relator on April 6, 1953, from which judgment relator has appealed to this court, and it appearing that the respondent, the Honorable Albert Besancon as judge presiding refuses to permit said stricken portions of said proposed bill of exceptions to be incorporated therein or to allow same as part of relator's bill of exceptions, and relator having applied to this court for relief under the provisions of R.C.M. 1947, sec. 94-7504 and under rule VII of the Rules of the Supreme Court, and it appearing that the true facts as to the matters and things which were said or done or which occurred during the county attorney's argument before the jury in said criminal cause are in dispute, and sufficient grounds appearing therefore,
It is hereby ordered that the relator William Toner be and he is granted leave to prove before Donovan Worden, Sr., the referee hereinafter named, the facts in relation to such proposed bill of exceptions and the striking therefrom of said designated portions thereof and the refusal or failure of the trial judge to incorporate said portions in said bill or to allow or settle such proposed bill of exceptions with such portions therein.
It is further ordered that said matter be referred to Donovan Worden, Esq., of the city of Missoula, Montana, as referee, to ascertain and certify to this court the true facts that are here in dispute, same to be a part of relator's bill of exceptions and transcript on appeal in said criminal cause wherein relator was convicted.