84 Ky. 485 | Ky. Ct. App. | 1886
DELIVERED THE OPINION OF THE COURT.
May 13,1886, Wm. Medcalf was, under an indictment for a felony, found guilty, and judgment rendered
The jurisdiction of the Court of Appeals, in prosecutions for felonies, exists alone in virtue of article 1, chapter 1, title 10, Criminal Code, and, in the language of section 334, it exists subject to the restrictions contained in that article.
Section 336 is as follows: “An appeal may be taken by the defendant in the following manner only:
“1. 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.
‘£ 2. 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.
‘£ 3. 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 the Court of Appeals shall thereupon issue a certificate that an appeal has been taken, which shall
“4. If time be given beyond the term at which the judgment 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 part of the record.”
As said in the case of Stratton v. Commonwealth, ante, p. 190, “it seems clear to us that in order to give to the Court of Appeals jurisdiction in a felony case, a certified transcript of the record must be filed in the clerk’s office within sixty days after the judgment, or, in a state of case provided for in subsection 4, within sixty days after the bill of exceptions is made part of the record, unless an order be made by the Court of Appeals granting further time to lodge the transcript.”
But no time was asked by the defendant in this case, or given by the court trying it, to present a bill of exceptions, but it was filed and made part of the record at the same time the judgment was rendered, consequently more than sixty days before the motion we are now considering was made. Nor was an order made by this court, or applied for by the defendant, within sixty days after the judgment, or after the bill of exceptions was made part of the record, granting further time to lodge the transcript.
As the appellate jurisdiction of the Court of Appeals in prosecutions for felonies is made subject to the restrictions contained in the article of the Code mentioned, and section 886 provides explicitly that an appeal may be taken by the defendant in the manner therein indicated, and in no other, we are utterly with
Certainly no authority is given to this court to make the order after the expiration of that period, nor to entertain an appeal until the transcript of the record is, as required by the Code, lodged in the clerk’s office of the Court of Appeals.
It was held in the case of Mackey v. Commonwealth, decided September 7, 1882, that the failure to file the record in the clerk’s office of the Court of Appeals in a felony case within sixty days after judgment, does not affect the jurisdiction of the court to hear the appeal, and unless taken advantage of before the cause is submitted for argument or hearing on the merits, the irregularity is to be treated as waived. But this decision was made under a misapprehension of the proper mean
If this court may take jurisdiction of felony cases after the expiration of the period mentioned in section 336, it follows that, contrary to the obvious policy and reason of the law regulating criminal prosecutions, as well as the meaning of the language used, the jurisdiction of the Court of Appeals is not subject to the restrictions contained in the Criminal Code, but is regulated by its own discretion.
In our opinion, the period mentioned was intended
In so far as the case of Mackey v. Commonwealth, 80 Ky., 345, conflicts with this, it is overruled.