STATE v. SHOLUND, 153 Wn. 398 (1929)

279 P. 591

THE STATE OF WASHINGTON, Respondent, v. ALEX SHOLUND, Appellant.

No. 21688. Department Two.The Supreme Court of Washington.
August 13, 1929.

[1] APPEAL AND ERROR (287) — STATEMENT OF FACTS — TIME FOR FILING. A statement of facts served and filed out of time will be stricken on motion. [2] SAME (282) — STATEMENT OF FACTS — NECESSITY. Instructions will not be reviewed where the only exceptions appear in the statement of facts, which was stricken.

Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered April 9, 1928, upon a trial and conviction of possession of intoxicating liquor with intent to sell. Affirmed.

Anderson Richards, for appellant.

Charles R. Denney, for respondent.

FRENCH, J.

Appellant was charged, by information filed in the superior court of Snohomish county, with the crime of possession of intoxicating liquor with intent to sell the same. Thereafter he was tried, convicted and sentenced, and this appeal follows.

There is but one assignment of error on which appellant relies for reversal, and that is the giving of a certain instruction which, appellant claims, does not correctly state the law.

[1] The respondent moves to strike the statement of facts for the reason that the same was not served or filed within the time permitted. The record shows that the trial took place on March 27, 1928, that the appellant was sentenced on April 9, 1928, and that on that day motion for new trial was denied and notice of appeal given in open court. The statement of facts in this case was served on January 16, 1929, and the

Page 399

same was filed January 17, 1929. Under the repeated holdings of this court, the statement of facts must be stricken. In re Rotter’s Estate, 148 Wn. 285, 268 P. 866; Chelan Electric Co. v. Wick, 148 Wn. 479, 269 P. 827.

[2] The only exceptions taken to the instructions given appear in the statement of facts, and, the statement of facts having been stricken, this court will not review the instructions in the absence of exceptions taken thereto. State v. Goddard, 132 Wn. 286, 231 P. 794.

Judgment affirmed.

PARKER, MILLARD, BEALS, and MAIN, JJ., concur.