Millican v. State ( 1862 )

Moore, J.

Article 789 of the Code of Criminal Procedure provides that appeals in criminal eases shall be filed and docketed under the same rules which govern appeals in civil actions, except that it shall be within the discretion of the court, in cases of felony, to permit a transcript to be filed at any time during the term to which an appeal is taken. And by art. 1923, 0. & W. Digest, it is provided that the transcript must be filed in this court on or before the first day of the term, subsequent to the time of perfecting the appeal, or on or before the first day of the time during the said term that may have been designated for the trial of causes from the district in which the appeal was taken. This appeal was taken on the 20th of September, 1861, and if the time within which the transcript should have been filed in this court did not commence to run from that day, it certainly would do so from the adjournment of the court at which it was taken, which could not by law have been more than five or six days subsequent to that time. The 2nd day of December, 1861, was the time designated by this court for the trial of causes brought from the district from which this appeal is prosecuted. More than forty days had elapsed from the perfection of this appeal before that time. The transcript should, therefore, have been filed by that time, or, at farthest, by permission of the court, during its last term. It was not filed, however, until October 31st, 1862. The court has evidently, therefore, no jurisdiction of the case, and it must be dismissed.

If an inspection of the record induced the belief that any errors had occurred in the court below, to the detriment of the appellant, the disposition that we are compelled to make of the case would, from its character and magnitude, excite deep regret; but an examination of the transcript does not produce such an impression. Because the transcript was not filed in this court within the time prescribed by law, the appeal is dismissed.

Dismissed.