State v. Cutberth

• Decision Date: 14 May 1907
• Parties: STATE v. CUTBERTH.
• Court: Missouri Supreme Court

102 S.W. 658

203 Mo. 579

STATE v. CUTBERTH.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

CRIMINAL LAW—BILL OF EXCEPTIONS—SETTLEMENT—EXTENSION OF TIME.

Where the time for filing the bill of exceptions in a criminal case has expired, the court or judge is without jurisdiction to extend the time, and a bill of exceptions filed during the time fixed by a void order cannot be considered on appeal.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

William Cutberth was convicted of murder in the second degree, and he appeals. Affirmed.

T. L. Viles and G. W. Thornberry, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On the 10th of March, 1906, the prosecuting attorney of Stone county filed an information duly verified, wherein he charged the defendant with murder in the first degree of Sam Marlatt, in Stone county, on the 13th of January, 1906. At the March term of the said court the defendant was tried and convicted of murder in the second degree, and his punishment assessed at 15 years in the penitentiary.

Motions for a new trial and in arrest of judgment were duly filed, heard, and overruled, and the defendant sentenced to the penitentiary in accordance with the verdict. On the 19th of March, 1906, the court granted defendant 90 days in which to file his bill of exceptions. He failed to file his bill within the 90 days, but on the 18th of June, 1906, obtained leave of the judge of the court to file the same within 60 days from the 19th of June, 1906. Excluding March 19, 1906, from the count, the 90 days expired on June 17, 1906. As the time for filing the bill of exceptions had expired before the leave was granted by the court or judge thereof, the order attempting to extend the time was void and of no effect, as we have often decided. State v. G. A. Paul (not yet officially reported) 102 S. W. 657, and Powell v. Sherwood, 162 Mo. 611, 63 S. W. 485, and cases there cited. It results that there is nothing before us for consideration except the record proper. In this case the information is in all respects sufficient. It is in the form of the indictment which met the approval of this court in the cases of State v. Wilson, 172 Mo. 420, 72 S. W. 696; State v. Gray, 172 Mo. 434, 72 S. W. 698.

An examination of the record shows a regular arraignment of the defendant, and the impaneling of the jury, the return of the verdict, and the sentence of the court.

As there are no errors of which we can...