Hopt v. People (114 U.S. 488)

This is a writ of error to reverse a judgment rendered by the supreme court of the territory of Utah, affirming, upon appeal from the district court of the Third judicial district of the territory, a judgment and sentence of death upon a conviction of murder. The decisions of this court, after former trials of the case, are reported in 104 U.S. 631, and 110 U.S. 574; S.C.. 4 SUP. CT. REP. 202.

One of the errors now assigned in the brief filed in behalf of the plaintiff in error is that the record did not comply with the statute of Utah requiring that the written charges of the court should form part of the record. In the copy of the record of the district court contained in the record transmitted by the supreme court of the territory to this court, the statement relating to the charge of the court to the jury, and the exceptions to the charge, are as follows: On May 5th the case was finally argued by the counsel for either party, 'and the court charged the jury; defendant's counsel except generally to the instructions given by the court on its own motion, and exception allowed; and a verdict of guilty of murder in the first degree was returned and entered.' And on May 16th, 'the time allowed by law for filing the bill of exceptions herein having passed, the court, upon application of defendant's counsel, refuses to further extend the time. Defendant excepts.' The record also shows that on May 10th, after judgment and sentence, a notice of appeal was filed by the defendant with the clerk, and a copy of the notice served on the district attorney.

Appended to the brief filed in this court in behalf of the United States is an affidavit, taken January 7, 1885, of the deputy clerk of the district court, testifying that the counsel for the defendant at the trial in that court, who requested him to prepare the transcript of record on appeal to the supreme court of the territory, requested him to omit the written charge given by the court to the jury at the trial, and told him that no point was to be made by the defendant upon the instructions in Childs v. Frazee, 15 S.C.. 612, in 1880, interest was recovered against a that request was delivered by the clerk to the counsel, and by them filed with the clerk of the supreme court of the territory; that by reason alone of that request the written charge was omitted from the record; and that no bill of exceptions was ever filed, or offered to be filed, or presented to the judge of the district court for settlement.

WAITE, C. J., and HARLAN, J., dissent.

R. N. Baskin, for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

GRAY, J.