State v. Bailey
181 S.W. 605
Mo. Ct. App.
1916
Check Treatment

Submitted on the Record.

STURGIS, J. —

The defendant was tried and convicted on an information charging him with buying and receiving stolen property, knowing the same to have been stolen. The jury found the property to he of less value than thirty dollars and assessed the punishment at a fine of one hundred dollars, from which the defendant has appealed. Although defendant was represented in the trial court by able counsel, we are not favored with any statement or brief from either party in this court. The case is submitted on the transcript of the record alone.

The appeal in this case was granted July 23, 1914, at which time- defendant was given by court order ninety days within which to- file his bill of exceptions. No bill of exceptions-was filed within the time so given and no further extension of time was given by court order ór stipulation of parties made within such extended time. If, therefore, the validity of the bill of exceptions and its being made a part of the record for the purpose of review by this court is dependent on any extension of time by order of court or stipulation of parties, such bill of exceptions must be disregarded *393here. State v. Granger, 203 Mo. 586, 102 S. W. 498; State v. Cutberth, 203 Mo. 579, 102 S. W. 658; State v. Leahy, 226 Mo. 519, 523, 126 S. W. 399, and cases cited.

The bill of exceptions was signed by the trial judge and filed by an order of court then made on April 28, 1915. The transcript of the case was filed in this court on June 17, 1915. Is the bill of exceptions, included in the transcript here, a part of the record under the Laws of Missouri 1911, page 139, amending section 2029, Revised Statutes 1909? The proviso then added to this section gives an appellant in a civil case the right to have his bill of exceptions signed and filed, regardless of any extension of time therefor, “at any time before the appellant shall be required by the rules of such appellate courts respectively to serve his abstract of the record.” This proviso refers to the rules of appellate courts as to filing abstracts made under the power granted by sections 2048 and 2051 Revised Statutes 1909.

The Supreme Court, in State v. Rogers, 253 Mo. 399, 407, 161 S. W. 770, held that, in view of the fact that section 5245, Revised Statutes 1909, providing for filing bills of exceptions in criminal cases, provides that same may be signed and filed as allowed by law in civil cases, the 'amendment above noted applies to filing bills of exceptions in criminal cases also, the court remarking: - “Consequently, when the civil code was amended in 1911 so as to permit the filing of bills of exceptions after the time would expire within which the court might require such bills to be filed, section 5245, supra, underwent the same amendment, and bills of exceptions may be filed in criminal cases within the same time and under the same terms and conditions as in civil cases.” And in State v. Prince, 258 Mo. 315, 330, 167 S. W. 535, the court said: “Under section 2029, Revised Statutes 1909, as amended by Laws 1911, p. 139, a trial judge may now approve, sign and order a bill of exceptions filed after the expiration of the time *394granted for filing same, and the clerk may file such bill in vacation without any previous order of the court, except the order of the judge in vacation embraced in his certificate showing that the bill has been approved and signed by him. ” -

In State v. Conners, 258 Mo. 330, 167 S. W. 429, the Supreme Court ruled that what is termed the short method of perfecting appeals is not applicable to criminal cases and that a defendant cannot perfect his appeal by first filing a certified copy of the judgment and order granting the appeal and thereafter filing abstracts of the record as provided under section 2048, Revised Statutes 1909, but must, in such cases, file a full transcript as provided by sections 5308 and 5309, Revised Statutes 1909. 'Such also is the holding of this court in State v. Faith, 180 Mo. App. 484, 493, 166 S. W. 649. See, also, State ex rel. Pedigo v. Robertson, decided by the Supreme Court at this term. Nor .are abstracts of the record required to be filed in any criminal case, but the appellate court must proceed to render judgment on the record without any assignment of error. [Section 5312, Revised Statutes 1909; State v. Davidson, 73 Mo. 428; State v. Myers, 99 Mo. 107, 12 S. W. 516; State v. Faith, 180 Mo. App. 484, 493, 166 S. W. 649; State v. Lane (Kansas City Court of Appeals) 180 S. W. 394.] Certainly the defendant cannot here insist that there is any rule of court requiring an abstract of the record to be filed at any time, since this case is presented without abstract, statement or brief.

Granting, therefore, that defendant, under Laws 1911, page 139, supra, has as in civil cases the right to file his bill of exceptions at any time before he, as appellant, ‘ ‘ shall be required by the rules of such appellate court to serve his abstract of the record” when did such time expire? Neither this nor'any other appellate court has any rule specifying when abstracts of record in criminal cases shall be served, for none are or can be required. This court and the other appellate courts *395have a rule (our Rule 16) strictly enforcing the provisions of section 2047, Revised Statutes 1909, as to the return term of appeals, and requiring a civil case to be ready for presentation at such return term regardless of the time given to file bills of exceptions in the trial court. If appellant cannot file a complete transcript in time to perfect his appeal at the return term when and because the extended time for filing the bill of exceptions has not expired and none is yet filed, he must, nevertheless, present his appeal by the short method. This is the rule in all the appellate courts and the return term of an appeal cannot be prolonged by any extension of time to file bill of exceptions; and this is just as true under the amendment of 1911, supra, as before. But since, as we have seen, the appeal in a criminal case can only be perfected by filing a full transcript of the-record and such must contain the bill of exceptions, of necessity the above-mentioned rule cannot apply when the time for filing the bill of exceptions has been so extended as to prevent the appeal being perfected at the return term, and of necessity the old rule that the return term of an appeal must be determined by the time of filing the bill of exceptions, when filed within the extended time, must still prevail in criminal cases.

The appeal in this case was granted July 23, 1914, and the return term thereof, under section 2047, Revised Statutes 1909, was our October term, 1914, but as the trial court granted defendant ninety days to file his bill of exceptions, such fact would make our March term, 1915, the return term of this appeal. Had the bill of exceptions been actually filed in time to have perfected the appeal including same at that term, such bill would have been part of the record without any further order of the court extending the time. Such were the facts presented in State v. Conners, supra. The bill of exceptions here was not filed, however, until April 28, 1915, too late for our March term *396of court, and in no view of the case is the hill of exceptions a part of the record here.

This leaves for our consideration only the record proper. This we have examined and find without error. The information accords with approved forms and defendant was given a trial before a jury duly impanelled. We will further say that, while not required to examine any errors appearing only in the bill of exceptions, we have read the same and find no reversible error therein.

The judgment will therefore he affirmed.

Robertson, P. J.; and Farrington, J., concur.