Westerdale v. State

• Court: Arkansas Supreme Court
• Writing for the Court: ROBINS, J.
• Citation: Westerdale v. State, 168 S.W.2d 615, 205 Ark. 100 (Ark. 1943)
• Decision Date: 18 January 1943
• Docket Number: 4276
• Parties: WESTERDALE v. STATE

168 S.W.2d 615

205 Ark. 100

WESTERDALE v. STATE

4276

Supreme Court of Arkansas

January 18, 1943

Appeal from Howard Circuit Court; Minor W. Millwee, Judge; affirmed.

Judgment affirmed.

Alfred Featherston and O. A. Brewer, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

ROBINS, J.

The appellant, Clyde Westerdale, was found guilty by a jury in the lower court of the offense of removing property subject to a lien with the intent to defraud the holder of the lien and has appealed from a judgment entered on this verdict.

The Attorney General challenges the validity of the bill of exceptions embraced in the transcript in this case on the ground that it was not filed within the time fixed by the court. No error is shown in any part of the record not embraced in the bill of exceptions, so that, if, by reason of the invalidity of the bill of exceptions, we are precluded from considering that part of the record shown by the bill of exceptions, the judgment of the lower court must be affirmed.

The judgment in this case was rendered on September 2, 1942, and on the same day appellant's motion for new trial was overruled and the appellant granted forty-five days within which to prepare and file bill of exceptions. On October 8 1942, the attorney for the appellant wrote to the official stenographer requesting that her shorthand record of the trial be transcribed and filed. This request was refused by the stenographer on the ground that she had not been paid for making this record. The appellant did not file with the stenographer, nor with the clerk of the court, any oath to the effect that he had no property and was unable to pay the stenographer's fee. On October 26, 1942, the appellant's attorney filed a verified petition with the judge of the lower court setting forth that the appellant was absent from the state and had no property within the State of Arkansas subject to execution, and praying that the court stenographer be required to transcribe immediately her notes and file the transcript thereof in the office of the clerk. On the hearing of this petition the court stenographer testified that she was not willing to file the transcript unless she was paid the statutory fees, and stated that the defendant, on the trial, was represented by two lawyers and had testified that he was the owner of sawmills in Oklahoma. The lower court refused to order the stenographer to file transcript of her notes. The time for filing bill of exceptions as fixed by the court expired on October 17, 1942. The bill of exceptions contained in the record herein was not filed with the clerk of the lower court until November 2, 1942, and appears to have been approved by the trial judge on November 17, 1942.

It is provided by § 2876 of Pope's Digest of the laws of Arkansas as...