State v. Stone

• Decision Date: 19 March 1946
• Citation: State v. Stone, 178 Or. 268, 166 P.2d 980 (Or. 1946)
• Parties: STATE <I>v.</I> STONE
• Court: Oregon Supreme Court

178 Or. 268

166 P.2d 980

STATE

v.STONE

Supreme Court of Oregon.

Appeal dismissed on motion of respondent March 19, 1946.

Criminal law — Appeal — Bill of exceptions

1. The bill of exceptions is included within the judgment roll, but the necessity for providing a certified copy thereof has been obviated by a requirement that the original bill be set up.

Criminal law — Transcript on appeal

2. The filing of the transcript on appeal within the time limited by statute, or within such extension as may have been granted, is a jurisdictional matter and, if the transcript is not so filed, the appeal must be dismissed.

Criminal law — Appeal — Bill of exceptions

3. The bill of exceptions need not be filed with, or at the same time as, the formal documents comprising the transcript but, if not filed with the transcript, should be filed as soon as possible after it has been settled and certified by the trial judge and filed in the trial court.

Criminal law — Appeal — Bill of exceptions

4. Whether the bill of exceptions, if not filed with the transcript, has been filed within a reasonable time under circumstances, is for determination of the Supreme Court in the exercise of a sound discretion; there being no statute or positive rule of law on the subject.

Criminal law — Transcript — Filing

5. Alleged delay in settlement of bill of exceptions did not excuse failure to file transcript in time.

Criminal law — Transcript on appeal

6. Although the timely filing of the transcript on appeal is jurisdictional, if the responsibility for such failure lies solely upon the clerk of the trial court, failure to file in time may be excused, but the appellant must be diligent, and, if the failure to transmit transcript to the clerk of the Supreme Court is attributable to conduct on his part, appeal must be dismissed.

Criminal law — Transcript of testimony

7. The duty of transmitting the transcript on appeal is laid upon the clerk of the trial court, but the determination of whether it shall be sent up, and, if so, when, are matters solely within professional responsibility of appellant's attorney, and the attorney must request the clerk to act.

Criminal law — Appeal — Transcript

8. Where the transcript on appeal has not been filed in time, the record should show that appellant has not been lacking in diligence and that the failure to file the transcript is attributable solely to the negligence or contumacy of the clerk of the trial court.

Criminal law — Criminal appeals

9. The procedure provided by the criminal code in respect of appeals is complete in itself and is not affected by provisions of the civil code or decisions thereunder.

Criminal law — Appeal — Dismissal

10. Record did not show diligence excusing failure to file transcript in time, leaving court no discretion to do otherwise than to dismiss appeal and deny motion for order nunc pro tunc extending time to file the transcript.

  See 3 Am. Jur. 274
                  24 C.J.S., Criminal law, § 1770
                

IN BANC.

Appeal from Circuit Court, Polk County.

JAMES W. CRAWFORD, Judge.

Maley Stone, also known as Maley A. Stone, Maley Adelma Stone, and M.A. Stone, also alias Jack Lane, was convicted of being a habitual criminal, and he appeals.

APPEAL DISMISSED.

R.S. Kreason,District Attorney, of Dallas, for the motion.

Leroy L. Lomax, of Portland, contra.

HAY, J.

On October 29, 1945, after a trial by jury, the defendant was found guilty of being a habitual criminal (chapter 334, General Laws of Oregon, 1927;section 26-801, et seq., O.C.L.A.), and, on November 1, 1945, he was sentenced to be imprisoned for life in the state penitentiary.On December 18, 1945, he duly served and filed a notice of appeal.The transcript on appeal was not filed in this court until February 18, 1946, and, on the same day, the district attorney for Polk County moved to dismiss the appeal, upon the ground that the transcript had not been filed in due time.On February 26, 1946, defendant moved for an order, to be entered nunc pro tunc as of December 17, 1945, extending the time within which to file the transcript.

1, 2.Section 26-1320, O.C.L.A., provides that, within thirty days after an appeal is taken in a criminal case, or such further time as the court may allow, the clerk of the court in which notice of appeal is filed must transmit to the clerk of the supreme court certified copies of the notice of appeal, certificate of cause, if any, and judgment roll.These documents together are called the "transcript".The bill of exceptions, "if there be one", is included within the judgment roll (section 26-1221, O.C.L.A.), but the necessity for providing a certified copy thereof has been obviated by a requirement that the original bill be sent up.State v. Laundy,103 Or. 443, 503, 507, 206 P. 290.The filing of the transcript within the time limited, or within such extension as may have been granted, has been held uniformly to be a jurisdictional matter.If the transcript is not so filed, the appeal must be dismissed.Section 26-1322, O.C.L.A.;State v. Douglas,56 Or. 20, 107 P. 957;State v. Morgan,65 Or. 314, 132 P. 957;State v. Foster,140 Or. 200, 13 P. (2d) 609;State v. Fehl,147 Or. 290, 32 P. (2d) 1013;State v. Rosser,162 Or. 293, 307, 320, 328, 87 P. (2d) 783.

Appellant urges that responsibility for the failure to file the transcript in due time rested solely upon the clerk of the trial court.In support of the motion to dismiss, there have been filed affidavits by that clerk, stating, in effect, that defendant's attorney did not, at any time until on or about February 15, 1946, request her to prepare or file the transcript.Opposing the motion, an affidavit by appellant's attorney states that the bill of exceptions was settled and approved January 16, 1946, and was filed in the circuit courtJanuary 18, 1946; that, on or about February 5, 1946, he mailed to the clerk of this court for filing a motion for an order extending the time within which to file his opening brief; that,...