Opinion
No. 1946
May 12, 1936
APPEAL AND ERROR — CRIMINAL LAW — BRIEFS — DISMISSAL.
1. In criminal case in which state was represented on appeal by Attorney General, failure of appellant to serve copy of his brief on Attorney General as provided by court rule held to require dismissal of appeal (Rules 15, 16, and 21 of the Rules of the Supreme Court of Wyoming).
APPEAL from the District Court, Fremont County; LIN I. NOBLE, Judge.
In support of the motion there was a brief by Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General, and William C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Shea and Mr. H.S. Harnsberger of Lander, Wyoming.
The appellant failed to serve upon or mail to the Attorney General a copy of his brief as required by Rules 15 and 16 of this court. The penalty for failure to serve brief as set forth in Supreme Court Rule 21 is dismissal on motion. State v. Kelly, 33 Wyo. 420; Small v. Bank, 16 Wyo. 126; Ford v. Townsend, 22 Wyo. 397. The motion to dismiss should be sustained.
In opposition to the motion, there was a brief by G.J. Christie of Lander and George H. Paul of Riverton.
A copy of appellant's brief was served within the time prescribed by law and rules of the court on H.S. Harnsberger, the County Attorney of Fremont County, who prosecuted the action. On account of the illness of G.J. Christie, attorney of record for the defendant and appellant, a copy was not served upon the Attorney General at the time the brief was served on the County Attorney, but later a copy of the brief was served upon the County Attorney, whose receipt is now on file in the records in this cause in the above named county. The character of the case is such that the liberty of the defendant and appellant is at stake. We believe that the non-service of a copy of the brief on the Attorney General is not jurisdictional. Reynolds v. Martin, 22 Wyo. 478; Bortree v. Dunkin, 20 Wyo. 376. The case is one of importance and the liberty of defendant and appellant being at stake, we feel that the brief of appellant, even though served out of time, should be considered, and defendant given the benefit of the court's decision on the merits. Counsel assumes responsibility for the omission to serve appellant's brief upon the Attorney General within the period required by Rules 15 and 16 of this court. The breach of the rule was not committed by defendant, whose liberty is involved.
This is a criminal case in which the state is represented in this court by the Attorney General, who has filed a motion to dismiss the appeal on the ground that he was not served with appellant's brief within the time prescribed. See rules 15, 16, 21, 42 Wyo. 534, 535, 536. The ground of the motion is confessed, and appellant has shown no excuse for failure to comply with the rules. The brief was served on the County and Prosecuting Attorney who represented the state in the trial court, and the proper number of copies of the brief were filed in this court, but this did not do away with the necessity of serving the Attorney General. See Wilhelm v. State, 13 Wyo. 511, 81 P. 882. The motion must be granted, and the appeal dismissed. Wilhelm v. State, supra; Grippen v. State, 20 Wyo. 486, 124 P. 764, 128 P. 622; State v. Kelly, 33 Wyo. 420, 240 P. 207.
As we have frequently said, it is not an agreeable duty of the court to dismiss an appeal for failure to follow rules of procedure. See Grippen v. State, supra, at p. 493 of 20 Wyo. In this case we have felt justified in taking the time necessary to read and consider the evidence. The sole contention of appellant is that the verdict is not supported by sufficient evidence. We think we could not hold that there is no substantial evidence to support the verdict.
Appeal dismissed.