State v. Bierbach

47 Wis. 529 | Wis. | 1879

Tayloe, J.

This case is certified to this court upon exceptions taken by the defendant in the court below. The record discloses that the exceptions were not presented to the judge and allowed by him until after the expiration of the term of court at which the trial was had. This court has no jurisdiction to pass upon such exceptions. The right of this court to pass upon exceptions taken and allowed by the court, when there is no final judgment and no writ of error is issued to the court below, is given by section 4720, B. S. 1878. That section provides that “ any person who shall be convicted of an offense before the circuit court, being aggrieved by any opinion, direction or judgment of the court in any matter of law, may allege exceptions to such opinion, direction or judgment, which exceptions, being reduced to writing in a summary mode and presented to the court at any time lefore the end, of the term, and if found conformable to the truth of the case, shall be allowed and signed by the judge,” etc.

The statute then provides that upon allowing such exceptions the court shall stay proceedings, unless it shall clearly appear that such exceptions are frivolous, immaterial or intended for delay. The practice under this section is to certify such exceptions at once to this court for its consideration. The proceeding is intended to be a summary one, and it is therefore required that the exceptions must be allowed before the end of the term at which the trial is had. When exceptions are not allowed and signed until after the term, judgment must follow the conviction, and the exceptions then allowed are made a part of the record, as a hill of exceptions, under the provisions of section 4724; and in order to enable this court to review such exceptions settled after term and allowed as a bill of exceptions, the record containing such bill must be brought to this court by writ of error. It appearing that the exceptions were not allowed before the end of the term at which the trial was had, and there being no final judgment and writ of error in the case, the exceptions must be .dismissed. State v. Pooler, 37 Wis., 305.

By the Court. — So ordered.