I concur in the holding that the district court erred in dismissing the appeal from the probate court. The other questions discussed and determined are not before us. There is no occasion whatever to determine the extent of the limits of a trial de novo, for such a trial has not as yet been had in this case. The majority say that the trial de novo will be limited to the issues tried out in the probate court; that "the defendant may not, . . . . have the facts reviewed unless he has been permitted to withdraw" the plea entered by him in the probate court; and that the trial de novo will be limited to jurisdictional questions. I most emphatically dissent from this view. This court correctly defined trial de novo, in State v.Stafford, 26 Idaho 381, 143 P. 528, in saying that:
"A criminal case appealed from a justice's or probate court, after the appeal, stands the same in the district court as though it had been begun there. It is there for a new *Page 203 trial on every point and question that was raised or might have been raised in the justice's or probate court."
The Stafford case is not authority for the majority opinion. C. S., sec. 9266 provides what shall be contained in the record or transcript furnished the district court by a a justice or probate court on an appeal in a criminal case. This record consists of the complaint, the notice of appeal, any recognizance entered into by the defendant and depositions of witnesses conditionally examined. Certainly none of these papers disclose the plea entered by the defendant, nor would they necessarily show the sentence imposed. Even where the defendant enters into a recognizance, it is not to satisfy the judgment imposed by the justice or probate court, but it is "for the payment of any judgment, fine and costs that may be awarded against him on the appeal, and that he will . . . . render himself in execution of any judgment or order rendered or entered against him in the district court." (C. S., sec. 9267.) The judgment of the justice or probate court is not even a part of the record transmitted to the district court, and after an appeal is taken to the district court, in so far as that court is concerned, the judgment in the justice or probate court is a matter of no consequence.
Had the record in this case been prepared in accordance with C. S., sec. 9266, or had the district court confined its examination of the transcript from the probate court to the papers the statute says shall comprise the record, the plea entered in the probate court would not have been disclosed, and, in all likelihood, the appeal would not have been dismissed. When this case comes up for trial de novo, in the district court, and the prosecution attempts to prevent a trial on the facts, should the defendant desire such a trial, the lawful record will not disclose the plea in the lower court. The district court would surely not be expected to go outside the record to determine what happened in the probate court. It is apparent, therefore, that the trial de novo, as defined and limited by the majority, will not work in actual practice. *Page 204
It is the law that one convicted of a misdemeanor in a probate or justice court may appeal to the district court by serving and filing a notice of appeal with the justice or probate judge, who shall immediately transmit the papers mentioned above, as required by C. S., sec. 9266, to the clerk, who "must file the papers received, and enter the action on the calendar in its order with other criminal cases, and the same must be tried anew in the district court . . . ." C. S., sec. 9268, and, as said by Chief Justice Sullivan, in the Stafford case, "as though it had been begun there." When the case gets to the district court, C. S., sec. 9266 treats it as an "action" and not as an appeal. If the defendant be convicted, the court pronounces its judgment without regard to or necessarily knowing what sentence was imposed in the first instance. The majority opinion unnecessarily and improperly limits the trial in the district court — unnecessarily, because the only question presented could have been decided without reference to what may happen in the trial de novo in the district court, and, improperly, because the limitations imposed by the majority opinion are contrary to the statutes and to the settled practice in the district courts.