State v. Leahy

• Decision Date: 12 February 1910
• Citation: State v. Leahy, 126 S.W. 399, 226 Mo. 519 (Mo. 1910)
• Parties: STATE v. LEAHY.
• Court: Missouri Supreme Court

126 S.W. 399

226 Mo. 519

STATE v.LEAHY.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

Rehearing Denied March 15, 1910.

CRIMINAL LAW (§ 1092) — APPEAL AND ERROR — TIME FOR FILING BILL OF EXCEPTIONS.

Accused was convicted of assault with intent to kill, and on April 2d following was granted an appeal, and 30 days allowed within which to prepare and file his bill of exceptions.The time so allowed expired on a Sunday, and the following day, May 3d, the court made an order extending the time for filing the bill 15 days.No further order was made until the 4th of June, when the court made an order that an order extending the time to file a bill of exceptions be extended to the 5th day of June, and that it be entered nunc pro tunc as of the 18th day of May, and that when so filed it was to have the same force and effect as if filed on the 18th day of May.Accused filed his bill of exceptions on the 4th day of June.Held, that the orders of the court of May 3d and June 4th were invalid, the time to file the bill of exceptions not having been extended before the time allowed had expired, and therefore the bill of exceptions filed was without authority of law.

Appeal from St. Louis Circuit Court; Danl.D. Fisher, Judge.

David Leahy was convicted of assault with intent to kill, and he appeals.Affirmed.

Thos. J. J. Stanton, for appellant.E. W. Major, Atty. Gen., and Jno.M. Dawson, Asst. Atty. Gen., for the State.

BURGESS, J.

Upon an information filed by the assistant circuit attorney of the city of St. Louis on the 2d day of December, 1908, the defendant, in the circuit court of said city, was convicted of assault with intent to kill, without malice, and his punishment assessed at two years in the penitentiary.Timely motions for new trial and in arrest of judgment filed by the defendant were overruled by the court, whereupon defendant appealed.

It appears from the record that on April 2, 1909, the defendant was granted an appeal to this court, and 30 days allowed him within which to prepare and file his bill of exceptions.The time allowed for this purpose expired on the 2d day of May, 1909, which it appears was Sunday, and, notwithstanding that the time allowed expired on said day, the court, on the following day, Monday, May 3, 1909, made an order further extending the time for filing the bill of exceptions 15 days, which 15 days, as will be found by computation, expired on the 18th day of May, 1909.The record does not show that any further order was made until the 4th day of June, 1909,...