State v. Short

| Mo. | May 20, 1913

BROWN, P. J.

Tried in the circuit court of Iron county for advising and procuring the casting of an illegal vote, as prohibited by section 4427, Revised Statutes 1909, defendant was convicted, and appeals from a judgment fixing his punishment at a fine of fifty dollars.

The Attorney-General has filed in this court his motion to dismiss the defendant’s appeal on the ground that it was not perfected within one year from the date it was granted, as required by section 5313, Revised Statutes 1909.

Perfecting Appeal: Within One Year. The record before us shows that defendant’s appeal was granted on October 31, 1911, and' the bill of exceptions was filed and approved by the trial court on January 7, 1912, while the transcript was not filed with the clerk of this court until January 3, 1913, more than a year after the appeal was granted.

While section 5313, Revised Statutes 1909, requires appeals in all felony cases except when the defendant has “been sentenced to suffer death,” to be perfected in twelve months, it does not designate what acts are necessary to perfect such appeals.

In the recent case of State v. Pieski, 248 Mo. 715" court="Mo." date_filed="1913-03-18" href="https://app.midpage.ai/document/state-v-pieski-8018317?utm_source=webapp" opinion_id="8018317">248 Mo. 715, we held that appeals in criminal cases are governed by the appellate, procedure in civil cases, except where some special provision exists in the criminal code prescribing a different rule. This must necessarily be true for the reason that the right of appeal is wholly statutory, and there being no rule prescribed by the criminal code whereby we may determine when an appeal is perfected, the General Assembly must have intended that the laws governing appeals in civil and criminal cases should be construed in pari materia.

A.n appeal in a civil case is deemed perfected when the trial court makes the order granting the appeal, the docket fee is paid and a perfect transcript of the record and proceedings in the case is filed with the clerk of the appellate court, or in lieu of such complete transcript a certified copy of the judgment and the order granting the appeal is filed in such appellate court. [Sec. 2048, R. S. 1909.]

It follows that an appeal in a criminal case is not perfected until the appellant files with the clerk of the appellate court a complete transcript of the record proper, and also a certified copy of the hill of exceptions (unless the appeal is based upon some error in the record proper); or in lieu of such transcript a copy of the judgment appealed from, as well as a copy of the order granting the appeal. Neither of.these things was done by the defendant in the case at bar within twelve months next following the granting of his appeal; therefore, his appeal was not perfected within the time expressly limited by the statute.

Of course, if the failure to perfect his appeal within the year granted him by law was the fault of the circuit clerk in not preparing the transcript in a timely manner, or the fault of any person other than the defendant or his attorneys, such fact might furnish ground for overruling the motion to dismiss, but the defendant files no brief in this case and makes no showing in opposition to the motion of the Attorney-General.

The motion to dismiss will be sustained and the appeal dismissed. It is so ordered.

Walker and Faris, JJ., concur.