19 Ky.L.Rptr. 1300, 102 Ky. 94
Court of Appeals of Kentucky.
ADKINS v. COMMONWEALTH.
Oct. 21. 1897.


Appeal from circuit court, Knox county.
"To be officially reported."
Joseph Adkins was convicted of murder, and appeals. Dismissed.

PAYNTER, J.
The terms of the Knox circuit court begin the second Monday in April, fourth Monday in July, and first Monday in December. The April term continues for 18 judicial days, the July term for 12 judicial days, and the December term for 18 judicial days. The December term in 1896 seems to have been extended. The trial of the defendant was concluded in January, 1897. On the second day of that month, the court overruled the defendant's motion for a new trial. The verdict of the jury fixed the defendant's punishment at confinement in the penitentiary for life. On the day named, the 2d of January, the court pronounced judgment in accordance with the verdict of the jury, and made an order suspending the execution of the judgment for a period of 60 days from the date of the judgment, and, for a like period, time was given the defendant to prepare, and have signed, and made a part of the record, his bill of exceptions. An appeal was granted the defendant. Hon. Robert Riddell, as special judge of the Knox circuit court, tried the case. It does not appear that there was any term of the Knox circuit court until the regular term, which convened on the second Monday in April, which was the 12th. On the 13th of April there was produced in court what purported to be an order signed by the special judge on March 2, 1897, in which it is recited that the special judge did not have time to examine the bill of exceptions before the expiration of the time allowed to file the bill of exceptions, and the order recites that the time is extended 40 days for filing the bill of exceptions. This order was not made during any term of the court. There was also produced another order, signed by the special judge on the 3d of April, extending the time for filing the bill of exceptions until the 14th of April, 1897. On May 12, 1897, the defendant produced his bill of exceptions, signed by the Honorable Robert Riddell, special judge, and moved that the orders which Riddell had made as stated, and the bill of exceptions, be noted of record, and filed and made part of the record. The regular judge, A. H. Clark, seems to have been upon the bench, and refused to permit it to be done, because he was disqualified to preside in the case. Thereupon an election was held, and John T. Hays was elected special judge. Upon the election of Hays as special judge, the defendant produced the orders signed by Special Judge Riddell in vacation, and the bill of exceptions, and moved the court to have each and all of them entered and noted of record, and that each be made a part of the record in the case. The court sustained the motion, and it was recited in its order that the orders which Special Judge Riddell had made extending the time for filing the bill of exceptions are made a part of the record, and further recited that the bill of exceptions is made a part of the record. The special judge, Riddell, does not seem to have presided in the case during the April term of the court. The orders which we have recited indicate that the bill of exceptions had not been signed on the 3d of April, because he then extended the time until the 14th of April to have it filed, though the paper purporting to be a bill of exceptions had the special judge's (Riddell's) name signed thereto, and the statement above it indicates it was placed there on 18th of March, 1897. These facts are given with a view of determining whether or not the court has jurisdiction of this case. If the orders which Judge Riddell signed as special judge during the period between adjournment of the court, in January, and the convening of the April term of the court, are invalid, the defendant is without a bill of exceptions in this case.

Section 334, Cr. Code Prac., is as follows: "The court of appeals shall have appellate jurisdiction in prosecutions for felonies, subject to the restrictions contained in this article." In the article of which section 334 is a part is section 336, which is as follows: "An appeal may be taken by the defendant in the following manner only: (1) The appeal must be prayed during the term at which the judgment is rendered, and the prayer noted on the record in the circuit court. The appeal shall be granted as a matter of right. (2) When an appeal is prayed the court shall, if the defendant desire it, make an order that the 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, the 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. (3) 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. (4) if time be given beyond the term at which the judgment is rendered, to present a bill of exceptions, the transcript of the record may be filed in the clerk's office of the court of appeals within sixty days after the bill of exceptions is made a part of the record."

If section 336 has not been complied with, by lodging in the clerk's office of this court a transcript of the record within the time fixed by section 336, then the court has no jurisdiction of the case. It was decided in Stratton v. Com., 84 Ky. 190, 1 S. W. 83, that a transcript of the record must be filed in the clerk's office within 60 days after the judgment, unless the court of appeals, by an order made within that time, grants further time to lodge the transcript, or unless time be given beyond the term at which the judgment is rendered to present a bill of exceptions. It was decided in Medcalf v. Com., 84 Ky. 485, 1 S. W. 878, that *836 where a transcript in a felony case is not filed within sixty days after judgment, and no order made within that period extending the time for filing, the court of appeals is without jurisdiction to try the appeal. If an appeal is prayed in a felony case, and the defendant desires it, the court will make an order that the execution of the judgment shall be suspended until the expiration of the period within which he is required to lodge a transcript of the record in the clerk's office of the court of appeals. When such period has expired, the judgment must be executed, unless the defendant has filed, as provided in subsection 3 of section 336, a certificate showing that an appeal has been taken, or a copy of the order of the court of appeals granting further time to lodge the transcript. If the appeal has not been taken as required by subsection 3, unless the court has given further time to lodge transcript, the court has no jurisdiction to try the appeal. Subsections 2 and 3 contemplate that the judgment may be suspended for 60 days, during which period the transcript is to be filed. Subsection 4 provides that, if time be given beyond term at which judgment is rendered to present and file a bill of exceptions, 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 has been made a part of the record. Of course, this means that the bill of exceptions will be signed and made part of the record within the time given for that purpose. Assuming then (without deciding the question) that the court, on the 2d of January, had authority to extend the time 60 days within which to present a bill of exceptions, and that if the special judge, Riddell, had signed it within that time in vacation, it would have been a valid act, then, under subsection 4, if the transcript had been filed within 60 days from the expiration of the 60-day period mentioned, the court would have jurisdiction to try the appeal. Were the assumptions we have made correct, still the defendant has not complied with the requirements of the provisions of the Code, because the record was not lodged in the office of the clerk of this court until 24th of May, 1897,-many days after the expiration of the 120 days, which covered both the time for the presenting of the bill of exceptions and lodging the transcript of the record in the clerk's office of this court. This court would have been without power to have extended the time to prepare, present, and file a bill of exceptions in the court below. All that this court could have done would have been to have extended the time for lodging a transcript of the record in the office of the clerk of this court.

The question, then, arises, what authority had the special judge, Riddell, in vacation, to extend the time for filing the bill of exceptions? The court was not in session at the expiration of the 60 days in which a bill of exceptions was to have been filed. It was not in session on the 2d day of March, when he signed the order extending the time to file the bill of exceptions. It was not in session on the 3d day of April, when he made an order extending the time until 14th of April for filing a bill of exceptions. He was without authority to extend the time for filing a bill of exceptions, as we think. We are of the opinion that that which purports to be a bill of exceptions is no part of the record, and, further, that, as the transcript was not filed within the time which the Code requires, this court does not have jurisdiction to try this appeal.

The appeal is dismissed.

Ky.App. 1897.
ADKINS v. COMMONWEALTH.
42 S.W. 834, 19 Ky.L.Rptr. 1300, 102 Ky. 94


     

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