Miller v. State

77 Wis. 271 | Wis. | 1890

Taxloe, J.

Tbe plaintiff in error was convicted of murder in tbe second degree, and judgment was rendered against him on tbe 27th of October, 1887. A writ of error was issued on tbe 24th of September, 1889. A bill of exceptions was settled and signed by tbe judge of tbe court in which tbe defendant was tried, on tbe 3d day of January, 1890.

Tbe only error assigned by tbe learned counsel for tbe plaintiff in error for the reversal of tbe judgment in this case is that tbe court improperly allowed one H. J. Killilea, Esq., to appear as counsel to assist tbe district attorney in tbe prosecution of tbe said plaintiff in error, although be was employed and retained by private parties for a compensation to be paid by such private parties, which fact tbe accused offered upon the trial to prove, and made objection to tbe said counsel appearing and assisting in said action. It is alleged that tbe court refused to bear tbe evidence offered, and permitted tbe said counsel to assist tbe district attorney in tbe prosecution of tbe said action against tbe plaintiff in error.

Upon tbe case being called for argument in this court, tbe learned attorney general moved to strike tbe bill of exceptions from tbe files in tbe case, for tbe reason that it was not settled and signed within two years after tbe entry of tbe final judgment in tbe action. Tbe motion of tbe attorney general, we think, must be granted. This court held in Evans v. St. Paul F. & M. Ins. Co. 54 Wis. 522-524; Vromam, v. Dewey, 22 Wis. 362; and Bonesteel v. Bonesteel, 30 Wis. 151-153,—that tbe bill of exceptions in civil actions must be settled within tbe time lbnited for an appeal in such actions, which is two years after tbe entry of tbe judgment in tbe action. By sec. 3039, R. S., a writ of error to reverse a judgment in a civil action must also be issued within two years after tbe entry of tbe judgment; and by sec. 4724, R. S., a writ of error in a criminal action must be issued, and bib of exceptions served and settled, within tbe time prescribed for issuing and settling tbe same in civil actions. Under tbe decision in 54 Wis. 522-524, tbe bill of exceptions could not be legally settled and signed after tbe ■expiration of tbe two years from tbe date of tbe judgment. Tbe motion to strike it from tbe files must be granted.

Tbe bill of exceptions having been stricken from tbe files, there is nothing in tbe record showing tbe proceedings upon which tbe plaintiff in error relies for reversing tbe judgment.

By the Court.— Tbe judgment of tbe municipal court of Milwaukee county is affirmed.