State v. Short

• Decision Date: 20 May 1913
• Parties: STATE v. SHORT.
• Court: Missouri Supreme Court

157 S.W. 306

STATE v. SHORT.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

CRIMINAL LAW (§ 1069)—APPEAL—TIME— "PERFECTING."

Under Rev. St. 1909, § 5313, requiring appeals in all felony cases to be perfected in 12 months, what constitutes the perfecting of the appeal in criminal cases will be determined from civil cases, and an appeal is not perfected until appellant files with the clerk of the appellate court a transcript of the record proper and a certified copy of the bill of exceptions (unless the appeal is based upon some error in the record proper), or in lieu of such transcript a copy of the judgment appealed from, as well as a copy of the order granting the appeal, and where neither of these things was done by a defendant within 12 months from the granting of the appeal, his appeal was not in time.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

William Short was convicted of illegal voting and he appeals. Appeal dismissed.

John N. Raney, and Adrian Steel, of Ironton, for appellant. John T. Barker, Atty. Gen., and Ernest A. Green, Asst. Atty. Gen. (S. K. Owen, of St. Joseph, of counsel), for the State.

BROWN, P. J.

Tried in the circuit court of Iron county for advising and procuring the casting of an illegal vote, as prohibited by section 4427, R. S. 1909, defendant was convicted, and appeals from a judgment fixing his punishment by a fine of $50.

The Attorney General has filed in this court his motion to dismiss the defendant's appeal on the ground that it was not perfected within one year from the date it was granted, as required by section 5313, R. S. 1909. The record before us shows that defendant's appeal was granted on October 31, 1911, and the bill of exceptions was filed and approved by the trial court on January 7, 1912, while the transcript was not filed with the clerk of this court until January 3, 1913, more than a year after the appeal was granted.

While section 5313, R. S. 1909, requires appeals in all felony cases, "except when the defendant has been sentenced to suffer death," to be perfected in 12 months, it does not designate what acts are necessary to perfect such appeals. In the recent case of State v. Pieski, 154 S. W. 747, we held that appeals in criminal cases are governed by the appellate procedure in civil cases, except where some special provision exists in the Criminal Code prescribing a different rule. This must necessarily be true for the reason that the right of appeal is wholly...