Plаintiff in error was charged with the crime of first degree murder and was convicted of murder in the second degree. The sentence imposed was the minimum permitted for that crime. The record of his conviction and sentence is presented for review.
His motion for new trial was denied and judgment was rendered and entered on June 10, 1950. Promptly thereafter a transcript of the evidence was ordered by counsel for the accused and a promise of payment of the expense “in a few days” was made by him to the reporter. The amount required to pay the expеnse of
preparing the transcript was furnished by the accused to his counsel, but no payment was made the reрorter until October 29, 1950. The transcript was completed and delivery to the counsel for defendant tendered by the reporter on September 8, 1950. Plaintiff in error knew his attorney had not paid the reporter for and had not secured
The draft of the bill of excеptions was available to the defendant and his counsel on September 8, 1950. It was delivered to and receivеd by. counsel for the defendant on October 29, 1950. No attempt was made for more than a month thereafter to secure consideration by this court of an application for an extension of time. A motion was made on November 30, 1950, by plaintiff in error for an order “extending the. time, for the- preparation of the Bill of Exceptions * * * until December 15, 1950.” This court is authorized to grant an extension of time for settlement and allowance, of a bill of excеptions, but only “upon application and showing of good cause therefor.” § 25-1140.07, R. R. S. 1943. A situation justifying the intervention of this court by virtue of that provision must be one beyond the capacity and power of the applicant to havе prevented. The showing made in support of the motion for an: extension of time does not show a situation of that character. The good cause required as a prerequisite of a further grant of
time by this court means the intеrvention of something beyond control of the litigant. Negligence or the absence of diligence or alertnеss of the litigant or his counsel is not within the meaning of the law unavoidable casualty or misfortune. Shipley v. McNeel,
The assignments of error are: (1) That plaintiff in error was deprived of aid of counsel and the benefit of due prоcess of law because the counsel who appeared for him in the trial was suffering from a disabling physical condition and was thereby rendered incapable of conducting a defense for defendant; (2) that it was prejudicial error for the court not to declare a mistrial because of the illness of the attorney for the defendant and his misconduct during the trial; and (3) that a denial of the motion of the defendant for a new trial was error. The first two assignments of error are not referred to in the motion of plaintiff in error for a new trial. It is mandatory that alleged errors occurring in the trial of a criminal case must be pointed out to the trial court in a motion for new trial and а ruling obtained thereon as a prerequisite to a review of them in this court. Luster v. State,
When the record shows such a situation, it is presumed that any issue of fact which it was proper for the trial court to consider and decide was sustained by evidence and was correctly determined, and the judgment will be affirmed if the pleadings state a cause of action or a defense and support the judgment rendered. McQueen v. Jones,
The informatiоn or indictment and the plea of not guilty are the pleadings and formulate the issue in a criminal case. Bundy v. State,
The judgment of the district court must be, and it is, affirmed.
Affirmed.