State v. Robbins
| Decision Date | 14 June 1954 |
| Docket Number | No. 44099,No. 2,44099,2 |
| Citation | 269 S.W.2d 27 |
| Parties | STATE v. ROBBINS |
| Court | Missouri Supreme Court |
No attorney of record for appellant.
John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.
After trial by jury on December 9, 1952, defendant-appellant was convicted of forgery in the second degree, Section 561.080, as an habitual criminal, Section 556.280, and his punishment was assessed at 10 years in the penitentiary. (All statutory references are to RSMo 1949, V.A.M.S.) By order of the trial judge on the same date, defendant was given 10 days in which to file a motion for new trial. Within that period, to wit, on December 18, 1952, the trial judge ordered 'that an additional 20 days be granted the defendant, John Manuel Robbins, in which to file his motion for new trial'. There was no further order of action in this case until January 20, 1953, on which date defendant filed his motion for new trial. Thus, defendant's motion for new trial was filed on the forty-second day after return of the verdict on December 9, 1952, long after expiration of the period of 30 days granted by orders of court for the filing of such motion for new trial, likewise after expiration of the maximum period which, prior to January 1, 1953, might have been granted under Section 547.030 for the filing of a motion for new trial in a criminal case, and similarly after expiration of the maximum period of 40 days which, since January 1, 1953, may be granted under Supreme Court Rule 27.20, 42 V.A.M.S., for the filing of such motion.
On January 21, 1953, defendant's motion for new trial was overruled, allocution was granted, judgment was rendered, sentence was pronounced, and defendant was 'granted an appeal as a poor person'; but, no notice of appeal, Supreme Court Rule 28.03, or 'written application for such appeal', Section 547.070, was filed until February 11, 1953, on which date defendant filed notice of appeal 'from the order of the Circuit Court denying motion for new trial, entered in this action on the 21st day of January, 1953'. Defendant was represented in the Circuit Court by counsel appointed by the court on September 29, 1952.
A transcript on appeal, approved by defendant's court-appointed counsel, was filed here on December 31, 1953. The cause on appeal has been briefed by counsel for the State but, as to defendant, has been taken as submitted upon this transcript. The initial question, which we raise sua sponte, is as to whether a valid appeal was taken and, therefore, as to whether this court has jurisdiction to hear and determine the cause on appeal. State v. Smith, Mo., 242 S.W.2d 515; 24 C.J.S., Criminal Law, Sec. 1636, page 234.
During the period from November 1, 1950 (the date on which Supreme Court Rule 1.34 became effective), to December 31, 1952, appeals in criminal cases might be taken either under Section 547.070 by filing 'written application for such appeal' during the term at which final judgment was rendered or under Supreme Court Rule 1.34(d) 'by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases in Sections 129 and 131, Civil Code of 1943', Sections 512.050 and 512.070. Rule 1.34(e), in effect during that period, specifically provided that 'this rule shall be construed as authorizing alternative methods of appellate procedure'. During the same period, writs of error might be sued out in criminal cases within one year after final judgment. Supreme Court Rule 1.34(c); Section 547.080.
By order of this court, en banc, on April 14, 1952, rules of criminal procedure were adopted, effective January 1, 1953, pursuant to authority granted by Article V, Sec. 5, of the Missouri Constitution of 1945, V.A.M.S.; and, by order of this court on December 8, 1952, effective January 1, 1953, Supreme Court Rule 1.34 was rescinded and it was reiterated that 'appeals in criminal cases from and after January 1, 1953 (shall) be governed by the provisions of Rules 28.01 to 28.17'. Since defendant in the instant case sought to take an appeal from the final judgment rendered on January 21, 1953, the question as to whether a valid appeal was taken in this case, and therefore, whether this court has jurisdiction to hear the cause on appeal must be determined under Supreme Court Rule 28.03, the pertinent portion of which is as follows: Section 512.050, dealing with notices of appeal in civil cases, provides, in part, that: 'No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order...
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...S.W.2d 96; State v. Johnson, Mo., 331 S.W.2d 551; State v. Morrow, Mo., 316 S.W.2d 527; State v. Parker, Mo., 310 S.W.2d 923; State v. Robbins, Mo., 269 S.W.2d 27.5 Field & Cathcart v. Matson, 8 Mo. 686; Kerby & Potter v. Chadwell, 10 Mo. 392; Gehrke v. Jod. 59 Mo. 522; Biebinger v. Taylor,......
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Heard v. Frye's Estate
...our disposition and desire to accord a liberal construction to statutes and rules pertaining to appellate procedure. State v. Robbins, Mo., 269 S.W.2d 27, 29; Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(3); Krummel v. Hintz, Mo.App., 222 S.W.2d 574, 576(3). To the same effect, see State v. P......
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State v. Crocker
...days after the judgment became final, was not timely and no valid appeal was taken. State v. Parker, Mo., 310 S.W.2d 923; State v. Robbins, Mo., 269 S.W.2d 27[1, 2]; State v. Morrow, Mo., 316 S.W.2d 527[2, 3]; State v. Johnson, Mo., 331 S.W.2d This appeal should be dismissed. It is so order......
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...may be our disposition and desire to accord a liberal construction to statutes and rules pertaining to appellate procedure. State v. Robbins, Mo., 269 S.W.2d 27, 29; Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(3); Krummel v. Hintz, Mo.App., 222 S.W.2d 574, However, we have, ex gratia, examin......