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., see. 7942, provides for taking an exception to a decision granting or denying a motion for a new trial; that see. 7944 outlines the procedure to be followed in the preparation, service and settlement of a bill of exceptions; that sec. 8051 provides in certain cases, including an appeal from an order denying a motion for a new trial, that the record shall consist of a copy of the bill of exceptions ; that the constitution prescribes that the legislature shall *367provide a proper system o£ 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.
As a part of the system of appeals which the constitution, art. 5, sec. 13, directs the legislature to provide, C. L., secs. 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 dismissed.” v
8070. “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
This court, in State v. Wright, 12 Ida. 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 *368in 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., sees. 8056 and 8070.