State v. Harris
26 S.W. 558
Mo.
1894
Check Treatment
Gantt, P. J.

The defendant was indicted and convicted in the criminal court of Greene county, for rape on Mattie Williams! There are two counts in the indictment. In one .count, the female is alleged to Bave been under the age of fourteen years; in the other count, the rape is charged to have been committed by force and against her will. The defendant is not represented in this court by counsel or brief.

The verdict was rendered July 29, 1893, and the motion for new trial was filed August 3, 1893. On the ninth of August leave was given defendant to file Bis bill of exceptions. “’Sixty days from this date, in vacation, with the clerk of the court.” The record .shows that the bill of exceptions, was filed October 9, .1893.

*447The attorney general insists that the bill of exceptions can not be entertained by this court, because it was not filed within the time allowed by the order and leave of the court. Excluding the ninth day of August, the day on which the leave was given, it is clear that the sixty days expired October 8, and the point made is well taken. State v. Seaton, 106 Mo. 198; State v. Harben, 105 Mo. 603. In computing this time, we are necessarily governed by the entries in the record proper and not the recitals in the bill of exceptions.

A careful examination of the record proper discloses no error; on the contrary, the court seems to have proceeded very carefully, and the record is very complete. The motion for new trial was filed in time. While our statute is mandatory in requiring the motion to be filed in four days, as was held in State v. Brooks, 92 Mo. 542-591, yet it has been ruled to mean four judicial days. And as we take notice of the calendar, we find July 29, 1893, was Saturday. The intervening Sunday will be excluded from the computation, and the motion being filed on Thursday, the third of August, was in time. Bank v. Williams, 46 Mo. 17; Cattell v. Dispatch Publishing Co., 88 Mo. 356.

The judgment is affirmed.

All of this division concur.