Opinion
October 4, 1940.
Appeal from Floyd Circuit Court.
J.W. Caudill, Judge.
Claude P. Stephens and B.M. James for appellant.
Hubert Meredith, Attorney General, William F. Neill, Assistant Attorney General, and Edward L. Allen for appellee.
Dismissing appeal.
The grand jury of the Floyd Circuit Court indicted the appellant, Willie Shepherd, for the crime of arson. His trial resulted in a conviction and the jury fixed his punishment at confinement in the penitentiary for one year. On the day the jury returned its verdict, appellant filed his motion and grounds for a new trial which was never ruled on by the court, nor was any judgment entered on the verdict. With the record in this shape appellant filed his bill of exceptions, incorporating therein a transcript of the evidence which was approved by the trial judge and although no appeal was granted, he filed the record in this court.
Appellee's motion to dismiss this appeal must be sustained as in a criminal case an appeal may only be taken from a final judgment except on behalf of the Commonwealth. Section 335, Criminal Code of Practice; Riley v. Com., 55 S.W. 7, 21 Ky. Law Rep. 1406; Wylie v. Com., 184 Ky. 14, 211 S.W. 190. Should an order be entered overruling the motion and grounds for a new trial and judgment entered on the verdict, and should appellant except thereto, the lower court will grant him an appeal. He may then obtain time as provided by Section 282, Criminal Code of Practice, and Section 334, Civil Code of Practice, within which to file his bill of exceptions and may incorporate therein the same transcript of the evidence which is now before this court with this record and may use such transcript on his appeal.
For the reasons herein stated, the appeal is dismissed.