State v. Thompsett
| Citation | 65 Ohio App. 378,29 N.E.2d 967 |
| Parties | STATE v. THOMPSETT et al. |
| Decision Date | 06 February 1940 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court.
1. An appeal from a judgment of conviction in a criminal case will not be dismissed on the ground that the appellant's brief was not filed within the time prescribed by Rule VII of the Court of Appeals, as that rule has no application to criminal cases.
2. If an appellant in a criminal action fails to file a bill of exceptions until after the time allowed by statute, the court will strike the bill of exceptions from the files, and, if the errors complained of appear only in the bill of exceptions, affirm the judgment of the trial court.
Peter Albietz and John M. Scott, both of Columbus, for appellants.
Ralph J. Bartlett, Pros. Atty., and H. L. Holden, both of Columbus for appellee.
On the 14th day of December, 1938, defendants were jointly indicted for armed robbery of the Grandview branch of the Ohio National Bank. In due time the cause came on for trial, a jury was duly waived by the defendants, and an agreement to submit the case to the trial judge was entered into.
The trial court found the defendants guilty and each was sentenced to imprisonment in the penitentiary for life. Motion for new trial was filed, overruled, and final judgment entered on February 3, 1939.
On February 21st notice of appeal was duly filed and on the same date praecipe was filed for transcript of docket and journal entries.
The cause was docketed in the Court of Appeals on March 1, 1939. Defendants not having filed brief within the time prescribed under the rules of the court, the prosecuting attorney representing the state, filed a motion to dismiss the appeal for non-compliance with such rule.
On October 30, 1939, this court caused an order to be duly journalized, overruling the motion, and declaring that Rule VII of the Courts of Appeals does not apply to criminal actions.
Defendants' brief was not filed until January 27, 1940. The bill of exceptions was not filed until January 30, 1940, long past the time allowed by statute for the filing of such bill--almost a month after the hearing assignment in this court. The date set for oral argument was January 31st.
The state asks an affirmance of the judgment of the lower court on the ground that the claimed errors may only be made manifest through a bill of exceptions. An oral motion was made to dismiss the bill of exceptions, because it was not filed within statutory time. Leave was granted to present a formal written motion since the bill was only attempted to be filed on the day preceding the oral argument.
Counsel now representing the defendants are not the same as the ones representing them in the trial and at the time of filing the notice of appeal. The principle of...
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