Opinion
No. 42517.
October 8, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, RAY G. COWAN, J.
No attorney for appellant.
J. E. Taylor, Atty. Gen., D. D. Guffey, Asst. Atty. Gen., for respondent.
By an information filed in the circuit court of Jackson County, Missouri, on the 8th day of September, 1949, the defendant was charged with the crime of murder in the first degree. On trial, on the 11th day of January, 1950, before a jury in Division No. 7, Criminal Division B. of said court, the defendant was found guilty of murder in the second degree and his punishment fixed at imprisonment in the Missouri penitentiary for a term of 20 years. On January 17, 1950, he was granted allocution and duly sentenced in accordance with the verdict of the jury.
Although defendant was represented by counsel appointed by the court, no motion for a new trial was filed or appeal taken at the January term, 1950, at which term defendant was tried, convicted and sentenced, and defendant was thereafter transported to and confined in the State penitentiary at Jefferson City. On the 14th day of August, 1950, and during the May term, 1950, of the circuit court of Jackson County, the defendant, by his attorney, filed his application and "affidavit for appeal in Forma Pauperis," which application was sustained and the court reporter was ordered by the court to furnish the defendant "a complete transcript of the proceedings in this cause, free of charge to said defendant, and at the expense of the State," and time was granted for the filing of a bill of exceptions. Thereafter, a transcript of the record and bill of exceptions was duly prepared and filed in the circuit court on February 13, 1951, and a certified copy thereof filed in this court on March 12, 1951.
The transcript includes the information filed and plea entered, the voir dire examination of the jurors, the opening statements by counsel for the State and by counsel for the defendant, the examination of the witnesses, the instructions of the court, the arguments of counsel, the verdict of the jury and the judgment as entered on the verdict. Defendant's cause on appeal in this court was taken as submitted upon this transcript. Counsel for the State has briefed and submitted the cause in this court on the theory that "the record proper is before the court." It is contended (1) that the information is sufficient in substance and charged the defendant with the crime of murder in the first degree; (2) that the verdict is responsive to the charge and issues; (3) that the verdict is sufficient in form and fixes the punishment within the statutory limitations; (4) that allocation, judgment and sentence are in proper form and fully comply with the statutes; and (5) that no motion for new trial having been filed, only the record proper is before the court. In view of our conclusion that this court is not vested with jurisdiction to hear and determine the cause on appeal, it will not be necessary to consider these matters.
The sixteenth judicial circuit consists of Jackson County. Sec. 478.127. All references are to the R.S.Mo. 1949. The terms of court at Kansas City in Jackson County begin the second Mondays in January, March, May, September and November. Sec. 478.257. Divisions are provided for by Sec. 478.463.
Where an appeal is taken or a writ of error obtained by a defendant who is unable to pay the cost of a transcript for the purpose of perfecting his appeal, the court may order the same to be furnished at the cost of the State. Sec. 485.100. However, at the time the judgment sought to be appealed from was entered appeals were allowed only upon application, and such application to be effective had to be made during the term at which the judgment was rendered. Sec. 547.070. Writs of error upon any final judgment of a circuit court in a criminal case had to be brought within one year after the rendering of the judgment and not thereafter. Supreme Court Rule 1.34(c). And see Sec. 547.080.
Our rules now provide an alternative method, towit, that appeals may be taken in criminal cases by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases in Secs. 512.050 and Sec. 512.070. Supreme Court Rule 1.34(d) and (e), adopted February 13, 1950, effective November 1, 1950. Whether or not there was a valid appeal in this case must be determined under the applicable statutes and rules. As stated, the judgment was entered at the January term 1950, and no appeal was attempted until the May term 1950.
No appeal having been applied for or granted within the time provided by Sec. 547.070 and no writ of error having been applied for or issued within the time fixed by our rules, we have no jurisdiction of this cause on appeal. The appeal sought to be presented must be dismissed. It is so ordered.
All concur.