State v. Britt

117 Mo. 584 | Mo. | 1893

G-antt, P. J.

At the October term, 1890, in the ■circuit court of Montgomery county, the defendant was indicted and convicted of defiling his ward, one Mary .Dow, a female under the age of eighteen years. His motions for a new trial and in arrest were overruled, .and he filed his affidavit for appeal and it was granted.

On November 1, 1890, the court made the following order: Ordered “that the said defendant be allowed an appeal, with leave to defendant to file a bill of exceptions within forty days from this date.”

The defendant did not avail himself of this extension and file his bill of exceptions in the forty days, nor did he obtain from the circuit judge, during the forty days, an extension of the time, nor did the attorneys on both sides enter into a written stipulation extending the time and file it with the clerk in the cause; but on the twenty-sixth of April, 1892, some fifteen months after the leave given by the court had expired, this entry appears in the record: “Now at this day comes defendant herein, by his attorney, and files his bill of exceptions herein, all exceptions as to time of filing the same being waived by the parties plaintiff and defendant.”

When the forty days given by the court had expired, the judgment of the circuit court became final; neither the court or the parties had any power, in the-absence of an order or stipulation extending the time, to take any other steps in the cause. State v. Seaton, 106 Mo. 198; State v. Mosley, 116 Mo. 545; State v. Apperson, 115 Mo. 470. Hence the bill of exceptions filed at the April term, 1892, constituted no part of the record of this cause, and we must look to the-record proper alone for reversible errors. This, we-have done, and find none, and the judgment is affirmed.

The laches of the clerk, whose duty it was to certify this cause to this court, is so glaring that we cannot pass it in silence. Although this defendant was convicted in November, 1890, this transcript was not filed in this court till September 8, 1893. Delays like this bring reproach upon the administration of the law. The prosecuting attorney should have seen that this appeal was certified after the defendant had refused to-file his bill of exceptions. Affirmed.

All of this division concur.