Salisbury v. Com.

• Decision Date: 27 April 1934
• Citation: 254 Ky. 77,70 S.W.2d 987
• Parties: SALISBURY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

70 S.W.2d 987

254 Ky. 77

SALISBURY v. COMMONWEALTH.

Court of Appeals of Kentucky

April 27, 1934

Appeal from Circuit Court, Floyd County.

Millard Salisbury was convicted of manslaughter, and he appeals.

Appeal dismissed.

John Allen and Edward L. Allen, both of Prestonsburg, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

DRURY Commissioner.

On November 7, 1928, appellant shot and killed F. E. Stanley. On September 30, 1929, he was tried under an indictment for murder, was found guilty of manslaughter, and his punishment fixed at 21 years in the penitentiary.

His motion and grounds for a new trial were overruled and he was given to and including the last day of the next term to file his bill of exceptions. On January 4, 1930, he appeared by counsel and tendered his bill of exceptions, but as appellant had escaped from custody the court refused for the time to act on it. Later appellant was retaken, and on September 25 1933 (the 268th day of the year), the bill of exceptions was examined, approved, signed, filed, and made a part of the record.

To give this court jurisdiction of his appeal, appellant had to file a transcript of the record in the office of the clerk of this court, within 60 days after the bill of exceptions was made a part of the record; subsection 4,§ 336 of Criminal Code of Practice. Transcript was filed in office of the clerk of this court on November 24, 1933, the 328th day of the year.

Was that Within 60 Days?

We have answered that question adversely to appellant several times.

In Com. v. Lee, 154 Ky. 717, 159 S.W. 522, transcript, filed July 21, 1913, was held not to have been filed within 60 days from Lee's acquittal, which occurred May 22, 1913.

In Freeman v. Craft, 220 Ky. 15, 294 S.W. 822, claims filed on November 26, 1924, were held not to have been filed within 60 days from the beginning of the receivership, which began on September 27, 1924.

In Logan County v. McCarley, 188 Ky. 705, 223 S.W. 1094, it was held an appeal taken January 4, 1918, was not taken within 60 days from the entry of the judgment, which was entered November 4, 1917.

In Moore et al. v. Suerd, 8 Ky. Opin. 485, an appeal taken May 23, 1874, was held to have not been taken within 60 days, from the entry of judgment, which was entered on March 24, 1874.

In Louisville Ry. Co. v. Wellington, 137 Ky. 719, 126 S.W. 370, 128 S.W. 1077, it was held that a bill of exceptions filed May 12, 1909, had not been filed within 60 days from the overruling of motion and grounds for new trial, which took place March 13, 1909.

For construction of the expression "within 30 days," see Edwards v. Logan, 69 S.W. 800, 24 Ky. Law Rep. 678; Newton v. Ogden, 126 Ky. 101, 102 S.W. 865, 31 Ky. Law Rep. 549. Within 10 days is construed in Lowry et al. v. Stotts et al., 138 Ky. 251, 127 S.W. 789. Within 5 days is construed in Marcum v. Melton, 231 Ky. 244, 21 S.W.2d 291. Within 3 days has been frequently construed. See Porterfield v. O'Leary, 245 Ky. 410, 53 S.W.2d 730, and cases listed under section 342 of the Civil Code of Practice, and 18 Ky. Digest, "Time," ) 9 (6).

How Time is Computed.

Where the computation is to be made from an act done, the day on which the act was done must be included in the count. Where the computation is made from the day itself, then the day must be excluded from the count. Chiles v. Smith's Heirs, 52 Ky. (13 B. Mon.) 461; Marcum v. Melton, 231 Ky. 244, 21 S.W.2d 291; 62 C.J. p. 988, § 35.

When Shall We Count from the Act and When from the Day?

We usually count from the act when there has been an act done, which some one wants either to undo, or else to take some step that will either directly or indirectly affect that act, be affected by it, or is in some manner dependent on it and a reference to the Kentucky opinions listed under footnote 25 on page 988 of 62 C.J. will show how steadfastly this court has adhered to that rule. The reason for this rule is that as soon as an act is done, any one affected by it can immediately and on that very day take such steps as he desires to take.

When the trial court overruled the appellant's motion and grounds for a new trial, and that term of court came to an end, the judgment became final, and the only relief thereafter obtainable from any court is such as this court may award him upon appeal, and the only way he can give this court jurisdiction, if further time be not given, is by filing transcript of the record with the clerk of this court within 60 days as provided in section 336 of the Criminal Code of Practice.

That expression means that a period of 60 days must cover and include everything that is done in an effort to give this court jurisdiction if further time be not given. The time given (60 days) must in this case (no extension of time having been given) not only include the day of the filing of the transcript in this court (November 24, 1933), but must also include the day on which his bill of exception was made a part of the record (September 25, 1933).

We have not overlooked the provisions of section 3720b-86, Ky. St., relative to computation of time "after date," "after sight," or "after a specified event," the provisions of section 453 Ky. St., relative to the computation of time before a motion or proceeding is made or begun, or the provisions of section 681 of the Kentucky Code of Practice in Civil Cases, relative to the computation of time between acts. We have none of those questions now before us. Our question is the correct computation of time inclusive of two acts. We are simply determining the meaning of the expression, "within 60 days," as used in section 336 of the Kentucky Criminal Code of Practice in Criminal Cases, and we are simply holding that September 25, 1933, is not within 60 days of November 24, 1933, because the span of 60 days cannot, and to give jurisdiction to this court must, include them both.

This rule for computing time was announced by this court in 1853, in Chiles v. Smith's Heirs, 52 Ky. (13 B. Mon.) 460, and it has since been followed consistently. Lebus v. Wayne-Ratterman Co. (1893) 21 S.W. 652, 14 Ky. Law Rep. 794, and Com. v. Shelton (1896) 99 Ky. 120, 35 S.W. 128, 18 Ky. Law Rep. 30, do not announce a contrary doctrine.

In the first case, a mortgage to Lebus recorded on September 22, 1886, was attacked as preferential on March 22, 1887, and it was held the day of the recording must be included in the count and the attack had not been begun within six months thereafter.

In the second, a local option election had on March 26, 1894, was held to have not been had earlier than sixty days after January 25, 1894, and that January 25th should be included in the count. In each of these cases there was a specific act from...