State v. Williams

• Decision Date: 18 January 1919
• Docket Number: No. 2389.,2389.
• Citation: State v. Williams, 208 S.W. 283, 202 Mo. App. 536 (Mo. App. 1919)
• Parties: STATE v. WILLIAMS et al.
• Court: Missouri Court of Appeals

208 S.W. 283

202 Mo. App. 536

STATE v.WILLIAMS et al.

No. 2389.

Springfield Court of Appeals. Missouri.

January 18, 1919.

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

Charles Williams and another were convicted of lewd and lascivious cohabitation and appeal.Affirmed.

R. I. January, of Centerville, Buford & Chitwood, of Ellington, and O. L. Munger, of Piedmont, for appellants.

John R. Johnson, of Centerville, and John II.Keith, of Ironton, for the State.

BRADLEY, J.

Defendants were charged by indictment with lewd and lascivious cohabitation denounced by section 4729, R. S. 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:

"It might be well to note here that section 5313,Revised Statutes 1909, which gives the defendant one year to perfect his appeal in a felony, does not cover misdemeanor appeals, and therefore an appeal here in a criminal case is returnable as in a civil case. .That is, if the appeal is taken sixty days before the next term of this court, then the appeal is returnable to our next term; if taken less than sixty days before our next term, then the appeal is returnable to our second term thereafter."

What we said in State v. Chilton, supra, was without reference to section 5313a,Laws 1913, p. 226, to which our attention was not, 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;section 2717, R. S. 1899); but was repealed in 1909(Laws 1909, p. 462), and re-enacted 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 re-enactment, except by the Kansas City Court of Appeals in State v. Nardini, 186 S. W. 557.Section 5313, R. S. 1909, affecting appeals in felony cases, is as follows:

"If any person taking an appeal 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 may 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 12 months in which to perfect his appeal, and if lie 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:

"An appeal in a civil case is deemed perfected when the trial court makes the order granting the appeal, the docket fee is paid, and a perfect transcript of the record and proceedings in the case is filed with the clerk of the appellate court, or in lieu of such complete transcript a certified copy of the judgment and the order granting the appeal is filed in such appellate court.Section 2048, R. S. 1909.It follows that an appeal in a criminal case is not perfected until the appellant files with the clerk of the appellate court a complete transcript of the record proper, and also a certified copy of the bill of exceptions (unless the appeal is based upon some error in the record proper)."

See, also, State v. Conners, 258 Mo. 330, 167 S. W. 429;State v. Ilgenfritz et al., 263 Mo. loc. cit. 615, 173 S. W. 1041, Ann. Cas. 1917C, 366.The amendment of 1911(Laws 1911, p. 139), relating to the time a 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 caseswe have been able to find touching upon section 5313, R. S. 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(Sup.)202 S. W. 536.

In State v. Lovitt, supra, it is said (italics are ours):

"It appears from the record that the appeal was granted on the 22d day of January, 1910, and that an order was then made allowing defendant until and during the May term, 1910, to file his bill of exceptions.It is further shown that the time for filing the bill of exceptions was extended from time to time, and that the bill was not filed until October 14, 1911.The transcript of the record was filed in the office of the clerk of this court on February 2, 1912.It thus appears that more than two years elapsed between the time of granting the appeal and the time the transcript reached this court.Notwithstanding this inexcusable delay we have concluded to overrule the motion to dismiss the appeal, and for the following reasons: Section 5313,Revised Statutes 1909, authorizes this court, upon the motion of the Attorney General, to dismiss an appeal for failure to perfect the same within twelve months,`unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal' An examination of the record has not satisfied us that the defendant was responsible for the delay in perfecting his appeal, and as the record is now before us, and was filed with the clerk of this court long before the filing of the motion to dismiss, we are not disposed to deny appellant a hearing on the merits."

In State v. Leonard, supra(italics are ours):

"This case is before us on a motion filed by the Attorney General to dismiss the appeal.The defendant was convicted in the circuit court of the city of St. Louis for setting up and keeping a gambling device called a `crap game,' and his punishment assessed at six months' imprisonment in the city workhouse.An appeal was allowed to this court on the 9th day of December, 1910.Defendant gave bond, and a stay was granted.The bill of exceptions was, after several extensions of time therefor, filed in the trial court, June 19, 1911.Nothing further was done in the matter until March 6, 1913, when defendant filed a transcript with the clerk of this court, thus perfecting the appeal.The motion of the Attorney General is filed under the authority of the statute(section 5313, a. S. 1909), which provides that, in any felony other than where the sentence is death, the appeal shall be perfected within twelve months from the time the same was granted, and upon failure so to do the court upon motion shall dismiss such appeal, unless the defendant shall show good cause for not having sooner perfected same.The Attorney General, after proper and timely notice to defendant, filed the motion to dismissMarch 22, 1913, and it was passed to be heard with the cause.At the present April term (April 10, 1913) the cause was called for hearing and was submitted on the motion to dismiss by the state, no brief having been filed or other appearance entered by the defendant.The statute(section 5313, `supra) is mandatory in its terms, and the court is limited in its enforcement only upon the showing of good cause by the defendant for not having perfected his appeal within the time prescribed.The statute(section 5312, R. S. 1909), dispensing with assignments of error, and requiring this court to proceed upon...