102 Ky. 94 | Ky. Ct. App. | 1897
dei.iveRed the opinion, op the court.
' The terms of the Knox 'Circuit Court begin the second Monday in April, fourth Monday in July and first Monday in December. The April term continues for eighteen juridical days, the July term for twelve juridical days and the December term for eighteen juridical days. The December term in 1896 seems to have been extended. The trial of the defendant was concluded in January, 1897. On the second day of that month the court overruled the defendant’s motion for a new trial. The verdict of the jury fixed the defendant’s punishment at confinement in the penitentiary for life. On the day named, the 2d of January, the court pronounced judgment in accordance with the verdict of the jury, and made an order suspending the execution of the judgment for a period of sixty days from the date of the judgment, and for a like period time was given the defendant to prepare and have signed and made a part of the record his bill of exceptions. An appeal was granted the' defendant. 'Hon. Robt. Riddell, as special judge of the Knox Circuit Court, tried the case. It does not appear that there was any term of the Kfiox Circuit Court until the regular term which convened on the second Monday in April, which was the 12th. On the 13th of April there was produced in court what purported to be an order signed by the special judge, on March 2, 1897, in which it is recited that the special judge did not have time to examine the bill of exceptions before the expiration of the time allowed to file the bill of exceptions, and the order recites that the time is extended forty days for filing the bill of exceptions. This order was not made during any term of the court. There was also produced another or
' Section 334, Criminal 'Code of Practice, is as follows: “The Court of Appeals shall have appellate jurisdiction in prosecutions for felonies, subject to the restrictions contained in this article.”
In the article of which section 334 is a part, is section 33f>r which is as follows: “An appeal may be taken by the defendant in the following manner only:
“1st. The appeal must be prayed during the term at which the judgment is rendered, and the prayer noted on the record in the circuit court. The appeal shall be granted as a matter of right.
“2d. When an appeal is prayed the court shall, if the defendant desire it, make an order that the execution of the judgment be suspended until the expiration of the period-within which the defendant is required to lodge a transcript of the record in the clerk’s office of the Court of Appeals: After the expiration of such period the judgment shall be executed unless the defendant shall have filed in the clerk’s office of the court rendering the judgment the certificate, as provided in subsection 3 of this section, that the appeal has been taken, or a copy of an order of the Court of Appeals granting further time to lodge the transcript,
“3d. The appeal is taken by lodging in the clerk’s office of the Court of Appeals, within sixty days after the judgment, a certified transcript of the record. The clerk of
'“4th. If time be given beyond the term at which the judg-J* ment is rendered to present a bill of exceptions, the transcript of the record may be filed in the clerk’s office of the Court of Appeals within sixty days after the bill of exceptions is made a part of the record.”
If section 336 has not been complied with by lodging in the clerk’s office of this court a transcript of the record within the time fixed by section 336, then the court has no jurisdiction of the case. It was decided in Sutton v. Commonwealth, 84 Ky., 190, that a transcript of the record must be filed in the clerk’s office within sixty days after the judgment, unless the Court of Appeals, by an order made within that time, grants further time to lodge the transcript, or unless time be given beyond the term at which the judgment is rendered to present a bill of exceptions. It was decided in Metcalf v. Commonwealth, 84 Ky., 485, that where a transcript in a felony case is not filed within sixty days after judgment, and no order made within that period extending the time for filing, the Court of Appeals is without jurisdiction to try the appeal. If an appeal is prayed in a felony case and the defendant desires it, the court will make an order that the execution of the judgment shall be suspended until the expiration of the period .within which he is required to lodge a transcript of the record in the clerk’s office of the Court of Appeals. When such period has expired the judgment must be executed unless the defendant has filed, as provided in subsection 3 of section 336, a certificate, show
All that this court could have done would have been to have extended the time for lodging a transcript of the record in the office of the clerk of this court. The iquestion then arises, what authority had the special judge, Riddell, in vacation to extend the time for filing the bill of exceptions? The court was not in session at the expiration of the sixty days in which a bill of exceptions was to have been filed. It was not in session on the 2d day of March when he signed the order extending the time to file the bill of exceptions. It was not in session on the 3d day of April when he made an order extending the time until the l'4th day of April for filing a bill of exceptions. He was without authority to extend the time for filing a bill of exceptions as we think.
We are of the opinion that that which purports to be a bill of exceptions is no part of the record, and, further, that as the transcript was not filed within the time which the Code requires, this court does not have jurisdiction to try this appeal. The appeal is dismissed.
The court delivered the following response to petition for rehearing January 25, 1898:
As all dates necessary to be stated for the proper consideration of the case appear in the opinion delivered, they will not be herein re-stated. In the opinion the court left open the question as to whether the trial court had the right to fix a day in vacation for signing the bill of exceptions, and making it a part of the record. We agree with the learned coun
Chapter 8, Criminal Code of Practice, contains three sections in relation to bills of exceptions. There is no other part of the Criminal Code of Practice which prescribes how the bill of exceptions shall be prepared, settled and signed.
Section 280 provides: Upon the trial of criminal or penal prosecutions either party may except to any decision of the court by which his substantial rights have been prejudiced, subject to the restrictions contained in section 2S1, which designates what decisions of the court are not subject to exception.
Section 282 reads as follows: “The exception shall be-shown upon the record by a bill of exceptions, prepared, settled and signed as provided in the Code of Practice in
Section 334, Civil Code of Practice, provides that: “Time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term, to be fixed by the court.” This language is substantially the same as the language contained in section 364, old Civil Code of Practice. In construing the language in section 364, to-wit.: “But not beyond the succeeding term,” the court said in Freeman v. Brenham, &c., 17 Ben Monroe, 608, that the “section of the Code was not intended to allow, nor should be construed as allowing', a bill of exceptions to be made up and signed in vacation.” We think the Code jn using language “not beyond the succeeding term,” merely authorized time to be given for the filing of the bill of exceptions -at the succeeding term, but not to prepare and file it at any time in vacation, provided that time did not reach beyond the succeeding term.”
In Allard v. Smith, 2 Met., 298, the court had given forty
In Corley’s Exor. v. Evans and Wife, 4 Bush, 410, Judge Robertson, delivering the opinion of • the court, said: “The document professing to state them, and styled a bill of exceptions, does not appear to have been either signed or filed in court; but, as time was allowed for completing it in vacation, the presumption is that it was prepared and signed -extra-judieially out of court, and is, therefore, according to the Code of Practice, unauthorized and void.” "
Before the adoption of the Code of Practice there seems to have been no law which authorized the court below to sign, allow, or make part of the record an exception to the decisions after the term was over. As early as 1821 Judge Mills, in delivering thq. opinion of the court in Biggs v. McIlvain’s Extx., 3 A. K. Marshall, 1192, makes that statement, and held that a bill of exceptions so made should be disregarded as it did not compose part of the record. Thid court, in Freeman v. Brenham, recognized that there was no such law when the Code was adopted. At the time of the revision and re-enactment of the Code, which took effect January 1, 1877, under the interpretation of the Code as made by this court, the lower court could not extend the time to a day in vacation to prepare and sign and make part of the record the bill of exceptions. If it was done it would
Since the re-enactment of the present Civil Code section ■334 has been, amended by an act of the' Legislature, approved May 12, 1886, which simply provides that if a judge of a ■court, for any cause, does not preside at the term during which the bill should be presented under the order of extension, or where no court is held, the party offering the bill 'of exceptions shall have until the next session of the court to perfect and prepare the bill of exceptions. The Legislature which reenacted the Code, and' the one which passed the amendment'to which we have just referred, have in effect approved the interpretation which this .court had given to section 364 of the old Code.
Sections 275, 276 and 277- are the same language as sections 280, 281' and 282 of the present Criminal Code. The exceptions are taken to the decisions of -the court in the same manner in penal as in criminal prosecutions, and they are shown in the same way upon the record by a bill of exceptions prepared, settled and signed as provided in the Civil Code of Practice in civil cases.
This court, in Tweedy v. Commonwealth, 2 Met., 379, recognized section 364, old Civil Code, as controlling the matter of extending the time for preparing, signing and making a bill of exceptions a part of the record in prosecutions by the Commonwealth. Counsel for appellant ap
Counsel contends that the language, to-wit.: “If time be given beyond the term at which the judgment is rendered to present a. bill of exceptions,” places no limitation on the. power of the court to fix the time for preparing and signing: a bill of exceptions. We agree with counsel that that subsection does not contain such limitation, and while it is. clear that it does not, it is equally clear that it confers no-power, nor does it attempt to confer any power, upon the court to fix the time for signing a bill of exceptions. The: subsection was not enacted for the purpose of conferring; authority upon the court to extend the time for preparing- and filing a bill of exceptions, but for the purpose of allowing the defendant time for filing a transcript of the record in the clerk’s office of the Court of Appeals. - The Legislature-recognized (without attempting to grant it) that 'the court had power to extend the time for preparing and filing the bill of exceptions. So it said, if the court had exercised the power by extending the time beyond the term at which the judgment was rendered to present a bill of exceptions, then the defendant was not limited to sixty days after the judgment for filing a certified transcript of the record, but should
We can not allow a provision of the Code which was neither intended to, nor does confer, power on the court to extend the time to prepare and sign a bill of exceptions to control our opinion in disregard of a section of the Civil Code of Practice which was expressly enacted for the Durpose of conferring the power and limiting its exercise.
The transcript not 'having been filed within the time required by law the appeal was properly dismissed.
The petition for rehearing was considered by a judge who did not deliver the opinion and also by all the judges.