Stratton v. Commonwealth

• Decision Date: 05 June 1886
• Citation: 84 Ky. 190,1 S.W. 83
• Parties: STRATTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

1 S.W. 83

84 Ky. 190

STRATTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 5, 1886

Appeal from Logan circuit court.

J. S Gollady, for appellant.

LEWIS J.

Under an indictment for willfully burning a barn, appellant was, at the July term, 1885, of the court, tried and convicted; and the motion for a new trial being overruled, an appeal was prayed, and by an order of court his bill of exceptions, duly signed, was, during the same term, filed, and made part of the record. But the transcript of the record in the case was not lodged in the clerk's office of the court of appeals until March 27, 1886; and the question is thus presented whether, under the Criminal Code, we have the power now to entertain the appeal.

Section 336 prescribes the time and manner in which an appeal in a felony case may be taken to this court, section 2 thereof being as follows: "When an appeal is prayed, the court shall, if the defendant desire it, make an order that an execution of the judgment be suspended until the expiration of the period within which the defendant is required to lodge a transcript of the record in the clerk's office of the court of appeals. After the expiration of such period the judgment shall be executed, unless the defendant shall have filed in the clerk's office of the court rendering the judgment a certificate, as provided in subsection 3 of this section, that the appeal has been taken, or a copy of an order of the court of appeals granting further time to lodge the transcript." Subsection 3 is as follows: "The appeal is taken by lodging in the clerk's office of the court of appeals, within sixty days after the judgment, a certified transcript of the record. The clerk of the court of appeals shall thereupon issue a certificate that an appeal has been taken, which shall suspend the execution of the judgment until the decision upon the appeal." By subsection 4 it is provided that time may be given beyond the time at which the judgment is rendered to present a bill of exceptions, in which case the transcript of the record may be filed in the clerk's office of the court of appeals within 60 days after the bill of exceptions is made part of the record. But the provision of subsection 4 does not apply to this case, for the bill of exceptions was filed, and made part of the record, during the same term (July, 1885) the judgment was rendered.

It seems to us clear that, in order to give to the court...