State v. Pieski

• Decision Date: 18 March 1913
• Citation: 154 S.W. 747,248 Mo. 715
• Parties: STATE v. PIESKI.
• Court: Missouri Supreme Court

154 S.W. 747

248 Mo. 715

STATE v. PIESKI.

Supreme Court of Missouri, Division No. 2.

March 18, 1913.

CRIMINAL LAW (§ 1082) — APPEAL — PAYMENT OF DOCKET FEE.

An appeal in an ordinary felony case is not perfected within the time and in the manner prescribed by Rev. St. 1909, §§ 2048, 5309, 5313, when the transcript is lodged with the clerk of the appellate court by the circuit court clerk, unless the "docket fee" provided for by section 10697 is paid or tendered.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Joe Pieski was convicted of crime, and appealed. Appeal dismissed.

Henry M. Walsh, of St. Louis, for appellant. The Attorney General, for the State.

PER CURIAM.

Motion to dismiss appeal for failure to perfect same within one year from the date of the granting thereof having been filed on proper and timely notice thereof given by the state, the question is before us. The appeal herein was granted by the circuit court of the city of St. Louis on the 30th day of September, 1910. The bill of exceptions was duly filed, and on the 28th day of April, 1911, as shown by the teste of the circuit clerk, the transcript was forwarded to the clerk of this court for filing. The said transcript has not been filed for the reason that appellant has not paid nor tendered the costs in this court or "docket fee" (so called) of $10 provided for by section 10697, R. S. 1909. This transcript has been lodged with the clerk of this court by the act of the circuit clerk in certifying the same here; but no file marks have been placed thereon, nor has the cause been docketed for hearing; all by reason of the failure of appellant to pay the said sum of $10, hereinafter, for convenience only, called a "docket fee." Section 5313, R. S. 1909, provides that, except in capital cases, a failure to perfect an appeal in a felony case within 12 months from the date of the granting of the same shall be grounds for the dismissal of such appeal, unless good cause for the delay shall be shown. No good cause to take the case out of the operation of the statute has been shown, if in fact there has been a failure to perfect the appeal. Whether there has been a failure so to perfect the appeal turns on the question of whether the payment or tender of the docket fee of $10 is a condition precedent to the perfecting of an appeal in a criminal case. Is an appeal in a criminal case (where no order has been made permitting appellant to prosecute an appeal as a poor person) perfected when the clerk of the court nisi certifies and forwards to the clerk of this court a transcript of the record and proceedings, whether the "docket fee" be paid or not? By statute, the duty enjoined upon the circuit clerk differs according to whether the appeal be a capital felony or an ordinary felony. In a capital case the clerk is required of his own motion, "without delay," to make out and forward a full transcript of the record to the clerk of this court. Section 5308, R. S. 1909. But in other felony cases appealed, such as the instant case, no such duty is enjoined on the clerk. The statute simply provides for the clerk to act in this behalf only when requested so to do by the appellant or plaintiff in error. "Such transcript," says the statute, "shall be made out, certified, and returned, on the application of the appellant or plaintiff in error, as in civil cases, except that the costs of the transcript shall not be required in advance." Section 5309, R. S. 1909.

Being thus relegated to the statute governing appeals in civil cases for the rule of procedure, in perfecting appeals in a criminal case (of the kind at bar), and turning to that statute, we find it required by section 2047, R. S. 1909, that "the appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section." Section 2048, to which special reference is made by the language above quoted, provides: "That the appellant or plaintiff in error, shall cause to be filed in the office of the proper appellate court, * * * a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript a certified copy of the record entry of the judgment," etc. We quote these statutes as showing that, in an appeal in an ordinary felony case, the appellant in order to reach this court, after leaving the court nisi, must walk in the footprints of a civil appellant, though he is allowed to travel more slowly. Section 5313, supra. Upon the appellant in the case at bar, as upon a civil appellant, the statute placed the duty of "causing to be filed in the office of the proper appellate court a perfect transcript." This duty of initiative is not placed on the clerk of the lower court; but it is saddled by statute upon the appellant, except in appeals in convictions for capital offenses, when such latter clerk acts of his own volition, by statutory mandate. In other words, while the clerk is required to act, in acting he does so upon the request and at the direction of the appellant. Nor does section 2053, R. S. 1909, when carefully read, militate against this view. Appellant must not only himself see that his transcript is transmitted to and filed in the office of the appellate court; but it is his duty to see that it is filed and entered on the docket in the proper manner. 3 Cyc. 131, citing Furthman v. McNulta, 182 Ill. 310, 55 N. E. 371; Grunow v. Menge, 36 La. Ann. 925; Walton v. Campbell, 51 Neb. 788, 71 N. W. 737.

We need not here discuss the technical meaning of the word "file," because that meaning is legion; as the facts differ, so also does the meaning differ. That ordinarily "a paper is said to be filed when it is delivered to the proper officer, and by him received...