74 Ky. 220 | Ky. Ct. App. | 1875
delivered the opinion of the court.
A preliminary question raised by the motion of the attorney general to dismiss the appeal because the record was not lodged in the clerk’s office of this court within sixty days after the judgment was rendered must be disposed of.
Section 342 Criminal Code confers appellate jurisdiction on this court in prosecutions for misdemeanors in the cases therein named; and section 343, Ibid., provides that the appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon the conditiori that the record is
In this case the judgment was rendered on the 19th of November, 1874, and the record was not lodged in the office of the clerk of the Court of Appeals until the 19th of January, 1875, which was not within sixty days, even if the day on which the judgment was rendered be counted out. But the rule, as laid down in Chiles v. Smith’s heirs (13 B. Mon. 461), is that when the computation is to be made from an act done the day on which the act was done must be included; because, since there is no fraction in a day, the act relates to the first moment of the day on which it was done. But when the computation is to be from the day itself, and not from the act done, then the day on which the act was done must be excluded. (Bellaris v. Hester, 1 Lord Raymond, and authorities cited.)
By the section of the Code supra, the record must be lodged with the clerk of this court within sixty days from the act of rendering the judgment, so that it is evident, according to the rule stated, the day on which the judgment was rendered must be included; and that being done, the lodgment was not made in the office within the time prescribed, and consequently this court can not take jurisdiction of the case. (Commonwealth v. Adams, 16 B. Mon. 338.)
Wherefore the appeal is dismissed.