Summary
In State v. Parnell, 56 Ohio App. 77, 10 N.E.2d 18, the Court of Appeals of the Sixth District followed State v. Bell, supra. It is apparent, however, from the reasoning of the opinion that the provisions of Section 13459-3, General Code, while considered as mandatory in reference to briefs, as are the provisions of Rule VII of the Court of Appeals, are not considered jurisdictional.
Summary of this case from Cincinnati v. HawkinsOpinion
Decided May 10, 1937.
Criminal law — Appeal — Bill of exceptions — Time for filing — Section 13445-1, General Code — No change made by Appellate Procedure Act — Briefs — Appeal dismissed for failure to file within time, when — Section 13459-3, General Code — Appellate procedure in criminal cases governed by criminal code — Section 13459-1 et seq., General Code.
1. A bill of exceptions in a criminal case must be filed in the trial court within not to exceed thirty days from the overruling of the motion for a new trial. Section 13445-1, General Code, fixes that time and the Appellate Procedure Act has made no change in this.
2. The time for filing briefs on appeal in a criminal action is fixed by Section 13459-3, General Code, and such appeal may be dismissed for non-compliance with the rule so fixed.
3. Appellate procedure in criminal cases is still governed by the chapter of the criminal code of procedure on that subject, Section 13459-1 et seq., General Code, except that Section 12223-1, General Code, changes the name of such reviews from "proceedings in error" to "appeal."
APPEAL: Court of Appeals for Lucas county.
Mr. Thomas J. O'Connor, prosecuting attorney, for appellee.
Mr. Edwin J. Lynch, for appellant.
The defendant-appellant, Charles Stuart Parnell, was convicted and sentenced on an indictment charging obtaining money by false pretense. From such sentence he appealed to this court on questions of law. Two motions by the state claim the court's consideration. They are, first, to strike the bill of exceptions from the files for the reason it was not filed within the time required by law, and, second, to dismiss the appeal because the appellant's brief and assignments of error were not filed within the time fixed by statute.
The material dates of events in the progress of the case are as follows: Verdict of the jury was returned June 10, 1936; motion for new trial, filed June 13th, was overruled December 31st; sentence was imposed January 28, 1937; bill of exceptions filed in the trial court February 4th; notice of appeal filed February 17th; defendant's brief and assignments of error filed in this court April 28th.
The state contends that Section 13445-1, General Code, determines the time within which a bill of exceptions in a criminal case must be filed. That section reads, in part:
"The court shall fix the time within which such bill of exceptions or objections, shall be filed, which, in no case, shall be more than thirty days from the overruling of the motion for a new trial."
It does not appear from the record that the trial court fixed any time for the filing of the bill, and thirty-five days did elapse after the motion for new trial was overruled, before the bill was filed.
The defendant claims the time fixed in Section 11564, General Code, forty days from the overruling of the motion for a new trial, is the controlling section, since the adoption of the new Appellate Procedure Act.
In this the defendant is wrong. That act made no change in the rule as to bills of exceptions in criminal cases. Sections 13445-1 and 13445-2, General Code, were not amended or changed by it in any way. Before that act was passed, Section 11564, General Code, dealt only with civil procedure, and in this respect no change was made. Before that law was adopted, appellate procedure in criminal causes was separately provided for in the code of criminal procedure. No change in this respect was made by the Appellate Procedure Act, except that Section 12223-1, General Code, which defines the word "appeal" as used in that act, applies in both civil and criminal procedure. In both types of procedure this section changes the name of the review from a "proceeding in error" to an "appeal."
That thirty days is the mandatory maximum for the filing of the bill of exceptions in the trial court was settled by Luff v. State, 112 Ohio St. 102, 146 N.E. 892, and again reiterated in the same case in Luff v. State, 117 Ohio St. 102, 157 N.E. 388. Since the Appellate Procedure Act became effective, it was decided in State v. Bell, 52 Ohio App. 11, 2 N.E.2d 786, and In re Estate of Arrasmith, 54 Ohio App. 391, 393, 7 N.E.2d 826, that no change was made by that act, and that thirty days is the maximum time.
Under some circumstances and as to certain classes of claimed errors, Section 13445-1, General Code, does invest a reviewing court with authority to require a complete bill of exceptions. This provision contemplated that at least an incomplete bill has been filed within the statutory time. This latitude does not apply when the weight and sufficiency of the evidence is involved.
On this reasoning and authority, the motion to strike this bill of exceptions from the files must be granted.
Section 13459-3, General Code, expressly provides in part:
"Upon filing the notice of appeal there shall be filed in the appellate court the transcript prepared by the clerk and any original papers received by him. * * * The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal. Within fifteen days thereafter, the appellee shall file its brief. * * *" (Italics ours.)
Section 13459-4, General Code, provides:
"Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof."
These provisions of the statute determine when briefs shall be filed in criminal appeals, and nowhere is the court given power to fix such time by rule of court as in civil appeals, and Rule VII of the Rules of Practice of this court has no application in this matter. Even by it, the defendant was 33 days in default with his brief and assignments of error.
This appeal was filed as of right, but the brief and assignments of error were not filed until eighty-three days later. Whether this court could extend the brief filing time is not material, for it was never asked to do so. Must this court dismiss this appeal for such dereliction of the appellant to comply with the statute? The court in State v. Bell, supra, says "Yes."
That a civil appeal may be dismissed for failure to file briefs in the time fixed in Rule VII of the Rules of Practice in the Courts of Appeals was declared in Doe v. Roe, 54 Ohio App. 145, 6 N.E.2d 593, and by inference that principle is laid down in Gusweiler v. Riverview Apartments, Inc., 54 Ohio App. 132, 6 N.E.2d 587, except that court differs from the one that decided Doe v. Roe as to the number of days in which such briefs must be filed.
If such appeals are to be dismissed for non-compliance with a rule of court, then surely the statute which prescribes that rule in criminal appeals has as much force as does such rule.
Especially is this true in the light of the various provisions of the code of criminal procedure which indicate the purpose to provide and require speedy disposition of criminal cases. This is definitely shown in the last sentence of Section 13459-3, General Code, which is as follows:
"All of such proceedings to review such judgments shall have precedence of all other cases in said reviewing court, and shall stand for hearing on the trial docket of said court from day to day until heard and submitted."
It is the manifest purpose of this whole section to require a speedy disposition of reviews in criminal cases. It says the briefs "shall be filed" in thirty days and nowhere is there expressly given to the court power to extend that time. Following this clearly-expressed provision and its spirit, we think it is the duty of the court to dismiss this appeal, and it is so ordered.
The practical effect of this action is no different than would result from overruling the motion to dismiss the appeal. All of the assignments of error relate to occurrences at the trial and can only come to the attention of this court by a bill of exceptions. There being none available for the reasons before stated, hence no prejudicial errors appearing on the record, this court could only affirm the judgment below, were the appeal not dismissed.
Appeal dismissed.
LLOYD and OVERMYER, JJ., concur.