State v. Bigelow

638 P.2d 873 (1982)

STATE of Hawaii, Plaintiff-Appellee, v. David BIGELOW, Defendant-Appellant.

No. 8114.

Intermediate Court of Appeals of Hawaii.

January 14, 1982.

*874 Charles R. Kozak, Honolulu, for defendant-appellant.

Wesley T. Kan, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before HAYASHI, C.J., and PADGETT and BURNS, JJ.

PER CURIAM.

This is an appeal from a conviction for cruelty to animals. We affirm.

Appellant complains that in the decision filed by the court, there is no finding that the animals in question were confined. However, no request for such a finding, pursuant to Rule 23(c), HRPP, appears in the record. That being so, the general finding of guilt in the decision was sufficient. Compare State v. Alsip, 2 Haw. App. ___, 630 P.2d 126 (1981).

Insofar as the appeal is a contention that the general finding of guilt by the court was unsupported by the evidence, the answer is that there is no transcript before us from which we can make that determination. Appellant says that the transcript is unavailable. However, Rule 39(b), HRPP, provides that

*875 The rules and practice governing the preparation and form of the record on appeal in civil actions shall apply to the record on appeal in all penal proceedings, except as otherwise provided in these rules.

There is no provision in the Rules of Penal Procedure as to how the problem of an unavailable transcript is handled. However, Rule 75(c) of the Rules of Civil Procedure provides, in detail, a method for settling what the evidence was below. There is no indication that counsel sought to follow that rule. Accordingly, the judgment must be affirmed.