48 Kan. 477 | Kan. | 1892
The opinion of the court was delivered by
This is an application for a peremptory writ of mandamus, brought by G. V. Powers against Hon. J. I).
“The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.”
Section 219 of the criminal code reads:
“ On the trial of any indictment or information for a crim*479 inal offense, exceptions to any decision of the court may be made, in the same cases and manner provided by law in civil cases; and bills of exceptions shall be settled, signed and filed as now allowed by law in civil actions; and the same proceedings may be had to compel or procure the signing and sealing of such bills, and the return thereof, as in civil cases.”
Under these provisions of the statute, the party objecting to the decision of a district court must not only except at the time the decision is made, but must' reduce the exception to writing and present the same for allowance at the term the decision is excepted to — not beyond the term. (Brown v. Rhodes, 1 Kas. 339; Gallaher v. Southwood, 1 id. 141; The State v. Bohan, 19 id. 28; The State v. Smith, 38 id. 194.)
In the case of The State v. Powers, tried in the court below, all of the proceedings, except the judgment, were concluded at the March term of the court; therefore, as the motion for a new trial had been overruled at the March term, and as Powers knew he would be sentenced at the June term upon the verdict, there was no reason, independent of the statute, for delaying the presentation of the bill of exceptions beyond the March term.
In Butler v. McMillen, 13 Kas. 385, it is said in the opinion that “ exceptions must be reduced to writing at the term.” In Ohio, from the code of which ours was to a considerable extent borrowed, it has been ruled that the continuance of a motion for a new trial to a subsequent term does not carry with it the right to make a bill of exceptions as to the rulings upon the trial. (Kline v. Wynne, 10 Ohio St. 223; Morgan v. Boyd, 13 id. 271.) In the latter case it was decided that —
“ Where a party presented his bill of exceptions for allowance, and also filed a motion for a new trial in the ease during the trial term, and suffered his application and motion to be continued to the next term of court without objection, he thereby lost the benefit of his application for the allowance.”
The peremptory writ prayed for against the district judge will be denied, with costs.