No. 12559 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974



### THE STATE OF MONTANA, Plaintiff and Respondent,

MRS. GLENN BUSH, Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Garnaas, Hall, Riley and Pinsoneault, Missoula,

Montana J. Robert Riley argued, Missoula, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana 

### J. C. Weingartner, Deputy Attorney General, appeared,

Helena, Montana Douglas G. Harkin, County Attorney, argued, Hamilton,

Montana

Submitted: January 17, 1974 Decided

### Cf

## p I t; , Filed:-

Clerk

### Mr. Chief JusticeJames 

### T. Harrison delivered the Opinion of the Court. Defendant was convicted 

### inthejustice court of Ravalli County of assault in the third degree. On March 23, 1973, thejustice court imposed
a penalty consisting of a fine 

### inthe amount of $150 and 60 days in the countyjail. The jail sentence was suspended. Following the imposition of sentence defendant filed a written notice of appeal to the district court of the fourth judicial district, inand for the county of Ravalli. Defendant did not post an appeal bond. The Ravalli county attorneymoved to have the appeal dismissed on the grounds that defendant's failureto post a bond meant that the appeal had not been perfected. 

### On May 11, 1973, the motion to dismiss was heard by the district court, Judge E. Gardner Brownlee, presiding. The district court dismissed defendant's appeal from thejustice court decision for the reason that defendant did not furnish the required bond. Defendant appeals to this Court from the districtcourt's dismissal. The sole issue presented forreview iswhether an appeal bond is necessary to perfect an appeal from thejustice court to the districtcourt. Section 95-2009, R.C.M. 1947,governs appeals from thejustice of the peace court to the district court and provides in part: "(b) The defendant may appeal to the district court by giving written notice of his intention to appeal within ten days (10) days (sic)afterjudgment. (c) 

## * * * Itshall be the duty of the defendant to perfect the appeal. " The Revised Commission Comment to section 95-2009, R.C.M. 1947, indicates that the burden is on the defendant to perfect an appeal from thejustice court and specificallystates: "This burden issustained when the defendant has posted the requisite bond 

## * * 

## *". This language indicates
an intent to require bond as a part of perfecting an appeal from thejustice court to the districtcourt. Furthermore, since the code was adopted as one comprehensive piece of legislation itshould be considered in 

### its entirety todetermine the

### effect of any one section. In the instant case the sections on bail are most relevant. Section 95-1109, R.C.M. 

### 1947,adrnits tobail as a matter of right a defendant who has been convicted in

### justice court and who intends toappeal. Section 95-1118, R.C.M. 

### 1947,imposes as a condition of admission tobail afterconviction the due prosecution of the appeal. The statemaintains that the legislaturewas thinking of section 95-1118, R.C.M. 

### 1947~when it

### enacted section 95-2009, R.C.M. 

### 1947, 

### thus giving thejustice of the peace broad discretion in determining whether or not torequire a bond on appeal. After reading the above-cited statutes together and the Revised Commission Comment, it

### is this 

### Court'sopinion that an appeal from thejustice court tothe districtcourt isperfected when the defendant has posted the required bond, in

### addition tothe other requirements. Since in this case defendant refused to post a bond when requested by thejustice of the peace, the appeal was not perfected, and thedistrict court properly dismissed the appeal on the state'smotion. Accordingly, the district court's dismissal of defendanys appeal is affirmed. &\ 1.



### We concur: