Smith v. State
| Decision Date | 08 January 1887 |
| Citation | 2 S.W. 661,48 Ark. 148 |
| Parties | SMITH & WASHINGTON v. STATE, AND PHILLIPS v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Perry Circuit Court, Hon. J. B. WOOD, Judge.
APPEAL from Washington Circuit Court, Hon. J. M. PITTMAN, Judge.
Appeals dismissed.
These are appeals from convictions for misdemeanors, in which the transcripts were filed out of time. In the first mentioned case the judgment was rendered March 13, 1886, and a motion for new trial was denied on the 18th of the same month. The transcript was lodged here May 18th, and the attorney-general was moved to dismiss the appeal. In response to this motion the appellants have filed an affidavit to the effect that the transcript was delivered into the hands of their attorneys on the 6th of May; that it was forwarded by mail the next day to the clerk of this court and reached him in due time, but was discovered, upon inspection, not to be authenticated by the seal of the circuit court, and that the delay in filing the same was caused by the necessity of remedying this deficiency.
In the other case, also, an affidavit of due diligence has been made, which the attorney-general admits to be sufficient, and he consents that the transcript may be filed, provided he has any power or right to waive the time of filing.
These appeals were granted by the court below upon the express condition, upon which alone an appeal can be granted in a prosecution for a misdemeanor, namely: that the record should be lodged in this court within sixty days after the judgment. Mansf. Dig., sec. 2433.
In Silverbury v. State, 30 Ark. 39, this court refused to take jurisdiction of an appeal under similar circumstances, notwithstanding an agreement of the prosecuting attorney who tried the case to extend the time. And it was there said that the court knew of no authority which the prosecuting attorney possessed to dispense with the requirement of the statute. But the two cases which are here presented of waiver by the attorney- general and of prevention by supposed unavoidable casualties, were reserved for future consideration.
Our Criminal Code of Procedure was borrowed from Kentucky; and it is the settled construction of this provision in that state that the appellate court will not take cognizance of an appeal where the transcript is filed out of time. Commonwealth v. Adams, 55 Ky. 338, 16 B. Mon. 338; Commonwealth v. McCready, 2 Metc. 376; Wood v. Commonwealth, 74 Ky. 220, 11 Bush 220; Stratton v. Com., 84 Ky. 190, 1 S.W. 83; Metcalf v. Com., 84 Ky. 878. We remark, however, that we see no good reason for the distinction taken in Louisville Chemical Works v. Commonwealth, 71 Ky 179, 8 Bush 179, that the computation of time is to be made from the overruling of a motion for a new trial. The statute says from the rendition of the judgment.
In Perrin, ex parte, 41 Ark. 194, the validity of a judgment rendered against a prosecutor in a misdemeanor case and his sureties on the appeal...
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