78 P. 413 | Kan. | 1904
The opinion of the court was delivered by
On October 6, 1901, Robert Hawthorn Burton was convicted of murder in the first degree. By reason of the rejection of certain evidence offered by the defendant at the trial the judgment was .re
Various assignments of error have been argued, all of them based upon such rulings as can only be reviewed when embodied in a bill of exceptions. The state objects to the purported bill of exceptions found in the transcript upon the ground that it was not settled within proper time. It was settled and signed December 14, 1903, after the expiration of the term of court at which the trial was had. The time for settlement had been duly extended by a succession of orders until November 1, 1903. On October 30, 1903, an order was properly made extending the time “until the 4th day of December, 1903." No further extension was made until December 4, when a new order was made extending the time to December 20. It is obvious, therefore, that within the rule announced in Croco v. Hille, 66 Kan. 512, 72 Pac. 208, and followed in The State v. Dyck, 68 Kan. 558, 75 Pac. 488, jurisdiction to make a valid bill of exceptions was lost before the document relied upon by defendant as such was signed, and such document is a nullity.
An effort is made on behalf of the defendant to bring the case within the principle applied in The State v. Bradbury, 67 Kan. 808, 74 Pac. 231, and in The State v. Horine, decided at the present sitting, post, page 256, 78 Pac. 411, that the word “until" (or “to") will be treated as inclusive, if a purpose to use it in that sense is manifest. To that end affidavits have been
“Affiant further says that said order granting further time to settle and file said bill of exceptions was intended to include the 4th day of December, 1903, for the reason that on that day court would be in session and the judge would then and there have time to settle and sign said bill of exceptions after his arrival in Marion on the 3d day of December, to which day said court was adjourned; that said bill of exceptions was not intended at the time said order was made to be signed and settled on the 3d day of December, 1903, for the reason that it was not the habit or custom of said judge to arrive in the city of Marion except upon said train as above mentioned, which was often late, and often did not arrive until after business hours had closed.”
This showing wholly fails to bring the case within the exception noted. Granting it to be permissible to look elsewhere than to the contents of the order itself to determine whether the word “until” was used in
• It is further argued that the loss of jurisdiction was remedied by the failure of the county attorney to make seasonable objection, and by his asking for a further extension of time. The defect is notone,however, that can be waived.
The appeal is dismissed.