Chandler v. State

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Chandler v. State, 167 S.W.2d 142, 205 Ark. 74 (Ark. 1943)
• Decision Date: 11 January 1943
• Docket Number: 4277
• Parties: CHANDLER v. STATE

167 S.W.2d 142

205 Ark. 74

CHANDLER v. STATE

4277

Supreme Court of Arkansas

January 11, 1943

Appeal from Howard Circuit Court; Minor W. Millwee, Judge; affirmed.

Judgment affirmed.

Alfred Featherston, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

SMITH, J.

Appellant was convicted for violating § 3398 of Pope's Digest which is part of the statute commonly referred to as the Pandering Act, and from the sentence to a term in the penitentiary upon that conviction is this appeal.

For the reversal of this judgment it is insisted that the testimony is insufficient to support the verdict and that error was committed in refusing to give certain requested instructions and that incompetent testimony was admitted over appellant's objections. These assignments of error relate, of course, to matters occurring during the progress of the trial and can only be brought into the record for our review by a bill of exceptions.

The motion for a new trial was heard and overruled on September 10, 1942, at which time the court allowed appellant forty-five days to prepare and present a bill of exceptions. The bill of exceptions was prepared and mailed to the presiding judge on October 29, 1942, and was approved by the trial judge on November 2, 1942.

Assuming that the bill of exceptions was received by and, therefore presented to the trial judge on October 29, that date was later than the forty-five days allowed for that purpose. It was held in the case of Springfield v. Fulk, 96 Ark. 316, 131 S.W. 694, (to quote the third headnote in that case) that:

"Bill of Exceptions--Failure of Judge to Sign.--Where a party in good faith presented his bill of exceptions, which he has a reasonable expectation of having signed by the judge, he is not prejudiced by necessary delay taken by the judge for his own convenience or for the purpose of giving it a thorough examination."

We count the time, therefore, within which the bill of exceptions might have been presented to the date when it was presented to the trial judge for approval and not to the time when the bill of exceptions was approved. But this date of presentation could not have been earlier than October 29, the date on which it was mailed to the trial judge and that date was after the expiration of the allotted time.

Appellant concedes that many cases have held that a bill of exceptions must be presented to the trial judge for his approval within the time allowed for that purpose and that one presented thereafter may not be considered, but he seeks to avoid the effect of these cases by the following contentions:

That the approval of the bill of exceptions was, in effect, an extension of time.

That the statute allows sixty days for appeal in felony cases and this appeal was taken within that time by filing a certified copy of the judgment of conviction.

These contentions will be considered together and may be disposed of by the following statement appearing in the opinion in the case of Boatright v. State, 195 Ark. 611 113 S.W.2d 107: "Appellant filed a motion for a new trial which was overruled, and on September 10, 1937, appellant was allowed sixty days within which to file his bill of exceptions. The judge signed and appellant filed his bill of exceptions on November 11, 1937, which was two days too late, in order for same to become a part of the record for consideration by this court. Austin v. State, 183 Ark. 481, 36 S.W.2d 400. ...