State v. Williams
Decision Date | 18 January 1919 |
Citation | 208 S.W. 283,202 Mo.App. 536 |
Parties | STATE OF MISSOURI, Respondent, v. CHARLES WILLIAMS and MRS. T. S. ADAMS, Appellants |
Court | Missouri Court of Appeals |
Appeal from Reynolds County Circuit Court.--Hon. E. M. Dearing Judge.
AFFIRMED.
Judgment affirmed.
R. I January, Buford & Chitwood and O. L. Munger for appellants.
John R Johnson and John H. Keith for respondent.
Defendants were charged by in dictment with lewd and lascivious cohabition denounced by section 4729 Revised Statutes 1909, upon trial below before the court and a jury defendants were found guilty and their punishment fixed at a fine of $ 200 and six months in jail each, and from this conviction defendants have appealed.
The State has filed a motion to dismiss the appeal on the ground that it was not perfected in time. The appeal was taken on December 1, 1917, and defendants given until March 1, 1918, to file bill of exceptions. No extension of time was given, and the bill was not filed until July 31, 1918; and transcript of the record was filed here August 5, 1918, eight months and five days after the appeal was taken.
Counsel for the State rely on State v. Chilton, 199 Mo.App. 220, 200 S.W. 745, where we said: What we said in State v. Chilton, supra, was without reference to section 5313a, Laws 1913, p. 226, to which our attention was called, said section being as follows: "If any person taking an appeal from the circuit court, criminal court or court of criminal correction on a conviction for a misdemeanor, shall fail to perfect the appeal within six months from the time the appeal is granted, the prosecuting attorney may file his motion before the court in which the conviction was had, asking that the appeal may be dismissed and the order granting the appeal be set aside; whereupon the court shall make an order that the appeal be dismissed and the order granting the appeal be set aside and for naught held, unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal, in which case the court may overrule the motion, and from the date of making such order dismissing the appeal, the judgment shall be and remain in force the same as if no appeal had been granted." Section 5313a, supra, affecting misdemeanor appeals was first enacted in 1899 (Laws 1899, p. 174, sec. 2717, R. S. 1899), but was repealed in 1909 (Laws 1909, p. 462), and reenacted in 1913 substantially in its original form. We do not find that this section affecting misdemeanor appeals was ever construed prior to its repeal or since its reenactment except by the Kansas City Court of Appeals in State v. Nardini, 186 S.W. (Mo. App.) 557, Section 5313, Revised Statutes 1909, affecting appeals in felony cases is as follows: "If any person taking an appeal to the supreme court on a conviction for a felony other than those wherein the defendant shall have been sentenced to suffer death shall fail to perfect the appeal within twelve months from the time the appeal is granted, the attorney-general may file his motion before the Supreme Court asking that the appeal be dismissed, whereupon the court shall make an order that the appeal be dismissed, unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal." This section is similar to section 5313a, Laws 1913, p. 226, affecting misdemeanor appeals, the only difference being the time in which a motion may be lodged to dismiss, and the court in which such motion is filed. In the ordinary felony appeal the appellant has twelve months in which to perfect his appeal, and if he fails to perfect in that time the attorney-general may cause the same to be dismissed by filing his motion in the supreme court, while in misdemeanor appeals if the appellant fails to perfect his appeal in six months the prosecuting attorney may cause dismissal by filing his motion in the trial court.
An appeal in a criminal case is not perfected until the appellant has filed in the appellate court a full and complete transcript unless the appeal is based on some error appearing in the record proper. In State v. Short, 250 Mo. 331, 157 S.W. 306, the Supreme Court said: [See, also, State v. Conners, 258 Mo. 330, 167 S.W. 429; State v. Ilgenfritz et al., 263 Mo. 615, 173 S.W. 1041.] The amendment of 1911 (Laws 1911, p. 139) relating to the time of allowance and filing of bill of exceptions is applicable to criminal as well as civil cases. [State v. Rogers, 253 Mo. 399, 161 S.W. 770; State v. Prince, 258 Mo. 315, 167 S.W. 535; State v. Moulton, 262 Mo. 137, 170 S.W. 1111; State v. Bailey, 192 Mo.App. 391, 181 S.W. 605.]
To what term of the appellate court is a misdemeanor appeal returnable? We have examined all the cases we have been able to find touching upon section 5313, Revised Statutes, 1909, affecting appeals in felony cases and we do not find the specific point passed upon except by inference. [State v. Lovitt, 243 Mo. 510, 147 S.W. 484; State v. Pieski, 248 Mo. 715, 154 S.W. 747; State v. Leonard, 250 Mo. 406, 157 S.W. 305; State v. Short, 250 Mo. 331, 157 S.W. 306; State v. Leibtig, 253 Mo. 439, 161 S.W. 674; State v. Wade, 253 Mo. 345, 161 S.W. 680; State v. Underwood, 254 Mo. 469, 162 S.W. 184; State v. Conners, 258 Mo. 330 167 S.W. 429; State v. Rogers, 253 Mo. 399, 161 S.W. 770; State v. Nelon, 202 S.W. 536.]
In State v. Lovitt, supra, it is said: (Italics are ours)
In State v. Leonard, supra, (Italics are ours): ...
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