Opinion
File No. 7253.
Opinion filed March 29, 1932.
1. Criminal Law.
Application for new trial for insufficiency of evidence must be either upon settled record or court's minutes (Rev. Code 1919, § 2556).
2. Criminal Law.
Appellate court cannot review sufficiency of evidence where motion for new trial preceded specifications of error
respecting insufficiency of evidence and settlement of record (Rev. Code 1919, § 2556).
The appellate court cannot review the sufficiency of the evidence, since, due to the fact that the trial court decided the motion for a new trial before the filing of the specifications of error respecting the insufficiency of the evidence and the settlement of the record, there was no question before it regarding the sufficiency of the evidence.
3. Criminal Law.
Appellate court, having settled record before it, may consider, on appeal from judgment only, alleged errors in excluding testimony.
4. Criminal Law.
Claimed error in not permitting witness' answers held not prejudicial, where same witness subsequently answered in effect same questions.
Note: On subsequent testimony of witness as curing erroneous exclusion of question, see 2 R.C.L. 255; R.C.L. Perm. Supp. p. 412; R.C.L. Pocket Part, title Appeal, § 207.
Appeal from Circuit Court, Pennington County; HON. H.R. HANLEY, Judge.
Richard Pray was convicted of grand larceny, and he appeals. Affirmed.
M.M. McKee, of Rapid City, for Appellant.
Turner M. Rudesill, of Rapid City, M.Q. Sharpe, Attorney General, and Frank W. Mitchell, Assistant Attorney General, for the State.
Defendant appeals from the judgment entered upon a verdict finding him guilty of grand larceny, and purports to appeal also from a denial of his motion for new trial.
[1, 2] Application for new trial upon the ground of insufficiency of the evidence must be made either upon settled record or the minutes of the court. Section 2556, Rev. Code 1919. In the instant case motion for new trial was made on January 5 and denied on January 24, but specifications of error as to the insufficiency of the evidence were not filed or served until April 30, and the record was not settled uptil May 16. There was nothing upon which the trial court could act at the time the motion for new trial was made, so far as concerns any question of the sufficiency of the evidence. The matter stands, therefore, as though no motion for new trial had been made, and the sufficiency of the evidence is not subject to review by this court.
[3, 4] Certain errors in excluding testimony are urged, and, inasmuch as a settled record is in fact before this court, the propriety of such ruling is probably for consideration upon appeal from the judgment only. Fuller v. Harms Supply Co., 54 S.D. 492, 223 N.W. 713. It appears from the record, however that the same witness was subsequently permitted to answer in effect the questions which appellant claims it was error to refuse to permit him to answer. It follows, therefore, that the error, if any, was without prejudice. Territory v. Collins, 6 Dak. 234, 50 N.W. 122.
The sufficiency of the evidence not being reviewable upon this record, and the other assignments showing no prejudicial error, the judgment appealed from is affirmed.
CAMPBELL, P.J., and POLLEY, ROBERTS, WARREN, and RUDOLPH, JJ., concur.