2 Mont. 392 | Mont. | 1876
Tbis case is before ns upon tbe motion of tbe respondents to dismiss tbe appeal because tbe same cannot be, and bas not been, taken under tbe laws of tbe Territory. Tbe grand jury of Jefferson county presented an indictment in open court October 7, 1874, charging tbe respondents witb tbe commission of the crime of assault and battery. A demurrer to tbe indictment on tbe ground that tbe court did not have jurisdiction of tbe offense was sustained, and judgment was entered that tbe re-spondénts be discharged. ¥e are of tbe opinion that tin’s appeal bas been properly taken under tbe Criminal Practice Act, which allows tbe Territory to appeal when judgment is rendered for tbe defendant in quashing or setting aside an indictment. Or. Pr. Act, § 395.
Tbe notice of appeal was filed and served October 10, 1874, and the transcript was filed in tbis court December 28, 1874. Tbe law provides that “ tbe appeal must be taken within six months after tbe judgment is rendered, and tbe transcript must be filed within thirty days after tbe appeal is taken.” Or. Pr. Act, § 396. Tbe transcript was not filed within tbe time specified in tbis section, and tbe respondents insist that tbe statute is mandatory. Ve think that tbe courts recognize a distinction in tbis matter. Tbe appeal must be taken within six months after tbe judgment is rendered, but tbe language relating to tbe filing of tbe transcript is directory. No penalty is attached to a failure upon tbe part of tbe appellant to file tbe transcript within the period fixed by law. Tbe rights of tbe respondents have not been impaired by tbe delay complained of. In Wood v. Fobes, 5 Cal. 62, Mr. Justice BryaN says: “ Tbis court has always held that statutes fixing tbe time for filing papers in a cause are merely chrectory.”
This is the first case in which this court has passed upon this question, but the subject has been referred to in other causes in which the decisions were based upon different grounds. Territory v. Fallis, ante, 236; United States v. McElroy, ante, 237.
The moUon is overruled.
