Winsett v. State , 54 Ind. 437 ( 1876 )

Niblack, J.

The appellant was indicted for retailing spirituous liquor without a license, and was tried and convicted at the November term, A. D. 1876, of the court below.

On the 29th day of January, A. D. 1877, he served notices, severally, on the clerk of that court, and on the proper prosecuting attorney, of an appeal of the cause to this court.

On-the 6th day of April, A. I). 1877, a transcript of the record in the cause was filed in this court.

The prosecuting attorney, on behalf of the appellee, moves to dismiss the appeal because, as he alleges, the transcript was not filed in this court within the time limited by law.

Our statute, providing for appeals in criminal causes, prescribes that, “ The appeal must be taken within one year after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken.” 2 R. S. 1876, p. 411, sec. 161.

“An appeal is taken by tbe service of a notice upon tbe clerk of tbe court where tbe judgment was rendered, stating that tbe appellant appeals from the judgment. If taken by tbe defendant, a similar notice must be served upon tbe prosecuting attorney. * * Id., see. 152.

Tbe appeal is considered as taken on tbe day on which notice of such appeal is served on tbe proper officers.

In this case, tbe transcript was not filed in this court within thirty days after tbe appeal was taken, and the motion will have to be sustained.

Tbe appeal is dismissed, at tbe costs of tbe appellant.