279 Mo. 569 | Mo. | 1919
Defendant, convicted in the Circuit Court of Wright County of murder in the second degree, for that, as it was alleged, he had shot and killed one Samuel McAllister has, after the usual motions, appealed. The State, by the Attorney-General, prosecuting in this behalf its pleas, has filed its motion to dismiss this appeal.
The circumstances of the homicide of which defendant was convicted are therefore not material to the question confronting us, which is: Should this appeal be dismissed for the failure of the defendant to perfect it within twelve months after it was granted? [Sec. 5313, R. S. 1909.] In full the section of the statute relied on by the State reads thus:
■ “If any person taking an appeal to the Supreme Court, on a conviction for a felony, other than those wherein the defendant shall have been sentenced to suffer death, shall fail to perfect the appeal within twelve months from the time the appeal is granted, the Attorney-General may file his motion before the Supreme Court asking that the appeal may be dismissed, whereupon the court shall make an order that the
The_ Attorney-General, invoking the application of the statute supra, moves the dismissal of defendant’s appeal upon the below facts:
The appeal was granted on the 4th day of April, 1918. On the 22nd day of March, 1919, defendant caused to be filed in this court (Secs. 5308, 5309, E. S. 1909; State v. Pieski, 248 Mo. 715) a certified copy of the bill of exceptions. Neither “a full transcript of the record in the case,” nor the “judgment and sentence,” as the statute requires (Sec. 5308, supra), was included among the documents so caused to be filed. This status inured till after the expiration of the twelvemonths period limited by Section 5313, supra; upon which, and on the 14th day of April, 1919, the Attorney-General filed his said motion to dismiss the appeal. Pending this motion, and evidently being spurred to some action thereby, defendant suggested diminution of the record and prayed "for our order in certiorari to the Circuit Court of Wright County to send up a true, complete and correct copy of the record in this cause. This writ issued and in return thereto the clerk of the Wright County Circuit Court certified' and sent up to us the entire record proper in this case, save and except the “original files” as his return shows, all of which files, including (so far as is lacking for the uses of this review) the indictment, the return says, are lost and cannot be found, and therefore are not included in the record sent up to us. Other orders, not pertinent to the point before us, were made by this court, and which therefore, lest they obscure the one salient question, it is not necessary to set down here.
Thus stand the record and the facts on the record before us. Upon these facts should the motion of the State to dismiss this appeal to be sustained?
It is obvious, we think, that the question in the final analysis resolves itself into the query whether the
While by statute the duty rests upon the clerk to make up the transcript, the duty is yet upon the appellant, perforce Sections 5309 and 5313, supra, to see to it that the clerk acts in a timely way. [State v. Pieski, 248 Mo. 715.] Moreover, it is plain that the clerk is powerless to supply a lost or destroyed document in the case. [Dougherty v. Ringo, 7 Ky. L. 360; Mayo v. Emery, 103 Ky. 637.] Therefore, again we say both the reason of the thing and the ruled cases (Fellheimer v. Eagle, 79 Ark. 201; In re Haywood, 154 Calif. 312; Wolf v. Smith, 6 Ore. 73) saddle this
We are not saying that defendant could not by a timely and appropriate proceeding or showing under the broad provisions of said Section 5313, save dismissal or obtain time beyond the allotted twelve months within which to supply lost documents and enable him to perfect his appeal. But he has taken no steps, made no showing, and exhibited no diligence or interest whatever in this matter.
So far as our researches have extended, the peculiar facts of the instant case are res integra in this State. A case bearing in remote principle some analogy to the situation now before us, is that of Campbell v. Greer, 197 Mo. 463, wherein the case, which was a civil suit, was reversed and remanded here because the pleadings were lost and no efforts had been made to supply them. We think it is enough to say as a reason for distinguishing the Campbell-Greer case from the instant case, that in the former there was no statute requiring the perfecting of the appeal in a fixed time under penalty of dismissal for a failure to do so.
Let the appeal be dismissed.