State v. Leadmon
| Decision Date | 30 March 1948 |
| Docket Number | 9976. |
| Parties | STATE v. LEADMON. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
In order to make evidence a part of the record in a criminal proceeding either a bill of exceptions under the provisions of Code, 56-6-35, or a certificate in lieu thereof under the provisions of Code, 56-6-36, is required to be signed by the judge who presided at the trial, or his successor in office within sixty days from the adjournment of the term during which the final judgment was entered, where no extension of the statutory period has been granted by an order entered of record.
Salisbury Hackney & Lopinsky, D. L. Salisbury, and Lon G. Marks all of Charleston, and Dennis R. Knapp, of Nitro, for plaintiff in error.
Ira J. Partlow, Atty. Gen., and Virginia Mae Brown, Law Clerk and Sp. Asst. Atty. Gen., for defendant in error.
On March 11, 1947, Paul Leadmon, in the Circuit Court of Putnam County, was convicted of involuntary manslaughter and moved the court in arrest of judgment and to set aside the verdict. He had been indicted, together with one Bertise Arawana Gould, for the murder of Louise Leadmon, his then wife, and had elected to be tried separately. On the following day his motions in arrest of judgment and to set aside the verdict were overruled and he was sentenced to the Putnam County jail for a term of twelve months and fined $250.00.
The term of the Circuit Court of Putnam County at which the sentence was pronounced adjourned on the 14th day of March, 1947. Leadmon's petition for a writ of error was granted by this Court on the 12th day of July, 1947, and the State now moves to dismiss as improvidently awarded, because the plaintiff in error has failed to comply with the provisions of Code, 56-6-35, governing a bill of exceptions, or the provisions of Code, 56-6-36, governing a certificate in lieu of a bill of exceptions, the sections cited respectively requiring that either a bil of exceptions or a certificate in lieu of a bill of exceptions be signed by the judge who presided at the trial within sixty days of the adjournment of the term at which the final judgment was entered or within an extension of the sixty day period shown by an order entered of record.
The accused was sentenced on the 12th day of March and upon his motion was granted a stay of execution for sixty days, the accused being placed under bond in the sum of $5,000.00. The motion did not include an extension of time for the preparation and signing of either a bill of exceptions or a certificate in lieu thereof, thus leaving the statutory period of sixty days from the adjournment of the term to expire May 13, 1947.
On May 6, a vacation order was entered extending for a period of thirty days 'the suspension heretofore granted in the above styled case'. (Italics supplied.)
On the 9th day of June, 1947, another vacation order was entered granting the motion of the accused 'that the suspension heretofore granted in the above styled case be extended for a period of thirty days from June 12, 1947'.
On the same day, that is, the 9th day of June, 1947, a vacation order was entered making a bill of exceptions a part of the record.
It will be observed that none of the extensions which the court granted the accused related to the time provided by statute for signing either bills of exceptions or a certificate in lieu thereof. They all plainly related to a stay of execution, which was the only 'suspension heretofore granted'. The period for obtaining the signature of the judge to either paper expired in this matter on the 13th day of May, 1947. The bill of exceptions was signed on the 9th day of June, 1947.
It is true that on the 5th day of May, 1947, a reporter certified the correctness of the transcript and that the judge who had presided at the trial did likewise on the same day. This, however, is not a certification in lieu of the bill of exceptions under Code, 56-6-36, but is the certification required to be made by the trial judge under the provisions of Code, 51-7-4. The fact that counsel for the accused did not regard nor intend the certification on May 5 as being the certification required under Code, 56-6-36, to make a transcript of the evidence a part of the record is demonstrated beyond peradventure by the fact that after May 5 counsel applied for and obtained two further extensions and did not present their bill of exceptions until June 9.
This Court has held in the case of State v. Consumers Gas & Oil Co., et al., 130 W.Va. 755, 45 S.E.2d 923, quoting the syllabus:
'An order of a trial court, in a law action, based upon the motion of an aggrieved litigant, for a stay of the execution of a judgment against him, which motion is sustained, and such stay granted, 'in order that petitioner (litigant) may perfect its appeal', will not be construed as extending the time within which such litigant may secure the signing of a bill of exceptions, or, in lieu thereof, a certificate of the evidence, under the provisions of Code, 56-6-35, 36.'
We are confronted with similar facts in this matter. True, this is a criminal case but there is no difference in the required method of procedure. The accused was granted by statute sixty days after the adjournment of the term within which to have either a bill of exceptions or a certificate in lieu thereof signed by the trial judge. He did not do so. Neither did he procure an extension of the sixty days allowed. After the end of that sixty day period, in the absence of an extension thereof, the power of the trial judge was at an end so that when the bill of exceptions or a paper to be treated as a certification was signed on June 9, 1947, its signing was without effect.
What is referred to as State's Instruction 3 and to the definition of involuntary manslaughter as contained therein is particularly under attack in the brief filed by the plaintiffs in error. This instruction, along with others, is attempted to be made part of the record by the vacation order entered below on June 9, 1947. We have already stated the reason for not regarding the instruction, so called, as a part of the record as a result of that order. Neither can it be regarded as a part of the record under Code, 56-6-20. That section provides that 'every instruction or charge in writing' with a notation thereon showing the action of the court over the signature of the judge shall be made part of the record without the formality of a bill of exceptions or certificate. The instruction under consideration was, with the consent of counsel for the State and for the accused, an oral instruction. It was not reduced to writing so that there could be a notation in compliance with the provisions of Code, 56-6-20. In the absence of a statutory provision dispensing with the necessity or rule of like import, instructions are required to be made a part of the record by a bill of exceptions or certificate in lieu thereof. Here the only evidence of the delivery of State's Instruction 3 is the transcript of the notes of the court reporter. They are not a part of the record now before this Court so that the assignments of error which relate to that instruction cannot be considered.
For the foregoing reasons the motion of the State to dismiss this writ of error as improvidently awarded is sustained and it is so ordered.
Writ dismissed.
The syllabus contains a correct statement of law, and I agree with the view of the majority that the grant by the trial court of a stay of execution of its final judgment is not an extension of the time within which a defendant in a criminal case may secure the signing of bills of exceptions, or, in lieu of such bills, a certificate of the evidence under the provisions of Code, 56-6-35 and 36. State v. Consumers' Gas and Oil Company, W.Va., 45 S.E.2d 923. I also agree that, if the transcript of the evidence in this case is not properly certified as part of the record, the assignments of error of the defendant which relate to an instruction, designated as State's Instruction No. 3, can not be considered.
The vital question on this motion, however, is whether the certificate of the trial judge, signed on May 5, 1947, within sixty days from the adjournment of the term of court at which the final judgment of March 12, 1947, was entered, is a certificate in lieu of a bill of exceptions under the provisions of Code, 56-6-36. The majority holds that it is not. I believe that it is. For that reason I can not agree to the deciion which denies to the defendant a review of his conviction and sentence which the transcript before this Court, if it could be properly considered as the record of the proceedings upon the trial, indicates were based upon insufficient evidence of his guilt and that an erroneous instruction was submitted to the jury by the trial judge.
In considering whether the certificate signed by the judge of the trial court is a mere reporter's certificate of a transcript of the evidence, as the majority holds, or is, in fact and in law, a certificate in lieu of a bill of exceptions under Code, 56-6-36, it is not material that counsel for the defendant initially failed to regard it as such when endeavoring to obtain extensions of time in which to prepare and have certified bills of exceptions. If, in fact, the certificate of May 5, 1947, was sufficient, the defendant is entitled to exercise the right which it preserved to him with respect to an appellate review of the final judgment whether that fact was then realized or appreciated by anyone connected with the case. Neither does the designation in the caption of the certificate '...
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