Brill v. State

• Decision Date: 27 June 1923
• Docket Number: 66.
• Citation: 124 A. 414,144 Md. 68
• Parties: BRILL ET AL. v. STATE.
• Court: Maryland Court of Appeals

124 A. 414

144 Md. 68

BRILL ET AL. v. STATE.

No. 66.

Court of Appeals of Maryland

June 27, 1923

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

"To be officially reported."

Luther Brill and others were convicted of assault to rob, and they appeal. Appeal dismissed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

J Cleveland Grice, of Hagerstown (Frank L. Mulholland and Charles Hartmann, both of Toledo, Ohio, on the brief), for appellants.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen and D. Angle Wolfinger, State's Atty., of Hagerstown, on the brief), for the State.

BRISCOE J.

The appellants were tried and convicted in the circuit court for Washington county on the second county of an indictment, charging them with an assault to rob. A motion for a new trial having been overruled, they were each sentenced to the Maryland Penitentiary. The appellants Brill and Pomeroy were sentenced for the period of 7 years, and the appellants Fraker and Ditmer were sentenced for the period of 5 years.

On January 4, 1923, the appellants filed an order for an appeal with the clerk of the court, and the record appears to have been transmitted to this court on April 7, 1923, more than three months after the order for appeal had been taken and filed.

A motion has been made to dismiss the appeal for the reason that the transcript of the record was not transmitted to the court within three months from the time of appeal taken, as required by section 6 of article 5 of the Code.

It is provided by section 40 of article 5 of the Code, that no appeal shall be dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the Court of Appeals that such delay was occasioned by the neglect, omission, or inability of the clerk or appellee, but "such neglect, omission, or inability shall not be presumed, but must be shown by the appellant."

Section 1 of rule 25 of this court provides that in criminal cases an appeal or writ of error allowed by law shall be taken within 30 days from the date of judgment or sentence and a transcript of the record shall be forthwith transmitted to this court, and the case shall be heard at the earliest convenient day after the record is transmitted to this court, either during the term at which the transcript is received, or at the first term thereafter, unless continued for cause. Section 2: Criminal cases may on motion of the Attorney General or counsel for the accused be advanced so as to be disposed of without any unnecessary delay.

It has been repeatedly held by this court that the rule (Code, art. 5, § 6) requiring transcripts of records on appeal to this court to be transmitted within three months from the time of the taking of the appeal (111 A. vii) has the controlling force of a statute. In Steiner v. Harding, 88 Md. 343, 41 A. 799, the court said:

"The rule has the binding force of a statute and its observance is obligatory on this court. We have no power to relax it, or to disregard it so long as it remains unrevoked. Cases falling under it are not within the domain of a judicial discretion, but they are governed by its imperative provisions."

In Castelberg v. Hamburger, 133 Md. 45, 104 A. 474, this court, in dealing with a somewhat similar case, held, when the record has been in fact transmitted after the expiration of the period limited by the rules, it is obligatory upon the court to dismiss the appeal unless the appellant proves that the delay was occasioned by "the neglect, omission, or inability of the clerk or appellee." Estep v. Tuck, 109 Md. 528, 72 A. 459; M., D. & V. Ry. Co. v. Hammond, 110 Md. 124, 72 A. 650; Horseman v. Furbush, 124 Md. 582, 93 A. 149; Warburton v. Robinson, 113 Md. 24, 77 A. 127.

In the last-cited case it was said that the rule--

"imposes upon the appellant the burden of showing that the failure to forward the record within three months after the entry of the appeal was not the result of his own neglect, but was due to the default of the clerk or appellee. * * * In the absence of proof that the clerk or appellee was delinquent, the presumption is that the appellant was responsible for the delay, and he must satisfy the court that by proper diligence the record could not have been prepared and transmitted in time."

The question here presented in the case is whether the appellants have furnished the necessary proof required by the rule. An affidavit of the clerk of the court below has been presented, but it simply certifies that he is unable to say when the bills of exceptions were delivered in his office to be filed in the case, or how the same were received in his office.

Guy Weagley, a deputy in the office of the clerk of the circuit court, deposes:

That he was unable to say how the record in the above-entitled case came into his possession. I do recall, however, that I gave it to the clerk of the court on April 5, 1923, but I am not able to say where I got it. I do not know whether it was delivered to me or whether I found it in the clerk's office and filed it on the 5th day of April, 1923.

Mary F. Shaneberger, the court stenographer, deposed:

That she was the court stenographer for the circuit court for Washington county; that she wrote in shorthand the testimony in the above-entitled case, and as soon as possible after being requested to do so, I transcribed the same and finished the typewritten transcript of the testimony about February 7, 1923, which was the earliest time in which it was possible for me to finish this testimony, from the date I was requested to transcribe, which consisted of approximately 374 typewritten pages.

It is apparent, we think, from the evidence that the delay in the transmission of the record in this case was not due to the neglect, omission, or inability of the clerk, nor can any fault or neglect be imputed to the appellee.

Mr. Wolfinger, the state's attorney for Washington county, deposed in part:

Thereupon another conference was held by counsel for the defense, the state's attorney and the court on the 31st day of March. At that time the exceptions were in their completed form, and in the presence of counsel for both parties, the court signed said exceptions. I am positive that they were not handed to me, and that they were never thereafter in my possession.

Judge Frank G. Wagaman, one of the associate judges for the Fourth judicial circuit of Maryland, deposed:

"That the above-entitled case was No. 37, criminal trials, November term, 1922, in the circuit court for Washington county, Md.; that the verdict of the jury was rendered December 13, 1922; that a motion for a new trial was filed December 15, 1922; that later said motion was heard and an order for appeal filed January 4, 1923; that an order of court was passed on January 11, 1923, extending the time for presenting bills of exceptions to the court in said case to February 12, 1923;

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