Griffis v. State

• Decision Date: 29 June 1915
• Docket Number: 803
• Parties: GRIFFIS v. STATE
• Court: Wyoming Supreme Court

149 P. 860

23 Wyo. 303

GRIFFIS v. STATE

No. 803

Supreme Court of Wyoming

June 29, 1915

ERROR to the District Court, Niobrara County; HON. WILLIAM C MENTZER, Judge.

Proceeding in error dismissed.

Allen G. Fisher and William P. Rooney, for plaintiff in error.

D. A Preston, Attorney General, for the State.

Clyde E. Griffis was convicted of grand larceny and brings error.

No briefs. Heard on oral arguments on motion to dismiss.

POTTER CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The plaintiff in error, Clyde E. Griffis, was convicted in the District Court, sitting within Niobrara County, of the crime of grand larceny, and, by the judgment of said court on January 29, 1914, was sentenced to a term in the penitentiary, his motion for new trial having been on that day overruled. On July 9, 1914, a petition in error was filed in this court for the reversal of said judgment, but no summons in error was issued, nor any praecipe therefor filed, and it does not appear that the issuance and service of summons in error was waived by either the prosecuting attorney of the county or the attorney general. On March 17, 1915, the attorney general filed a motion to dismiss the proceeding in error, alleging as reasons therefor that no summons in error had been served upon him, that he had not waived such service, and that more than one year had elapsed since the entry of the final judgment and the overruling of the motion for a new trial. The cause has been heard upon that motion, and it must be sustained, unless summons in error may yet be issued and served so as to commence the proceeding in error within the time limited by law. (Caldwell v. State, 12 Wyo. 206, 74 P. 496; Foree v. State, 14 Wyo. 296, 83 P. 596.)

It is contended, in opposition to the motion, that the same is premature, for the reason that the plaintiff in error has been confined in prison since the sentence was imposed upon him, bringing him within the exception stated in Section 5122, Compiled Statutes, 1910, allowing one in prison the period of one year, exclusive of the time of such disability for bringing a proceeding in error to reverse a judgment. But that section is found in the code of civil procedure and does not apply to criminal cases. Section 6293 limits the time for proceedings in error in criminal cases as follows: "In all criminal cases after final judgment and within one year after...