McElrouge v. Commonwealth

Court of Appeals of Kentucky

McElrouge v. Commonwealth

1 Ky. Op. 445, 1867 Ky. LEXIS 279

DecidedJune 4, 1867

StatusPublished

This text of 1 Ky. Op. 445 (McElrouge v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McElrouge v. Commonwealth, 1 Ky. Op. 445, 1867 Ky. LEXIS 279 (Ky. Ct. App. 1867).

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Opinion

Opinion oe the Court by

Judge Peters:

Judgment was rendered in this case on the 3d of January, 1866, and the appellant’s motion for a new trial was overruled on the 29th of the same month; and it appears from the indorsement of the clerk of this court that the record was filed in his office on the 25th of January, 1867, so that more than one year elapsed from the rendition of the final judgment until the record was lodged with the clerk of this court.

Section 343, Criminal Code, provides that the appeal should be prayed during the term at which the judgment was rendered and shall be granted upon the condition that the record is lodged in the [446]*446clerk’s office of the Court of Appeals within sixty days after the judgment.

It is apparent from this section of the Criminal Code, and it has been so ruled by this court that, in a prosecution for a misdemeanor, an appeal cannot be maintained unless the record is lodged in the office of the clerk of the Court of Appeals within sixty days after the judgment was rendered. As, therefore, the record was not lodged with the proper officer within the time prescribed, the motion of appellee must be sustained. Wherefore the appeal is-dismissed.

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Opinion oe the Court by

Judge Peters:

Judgment was rendered in this case on the 3d of January, 1866, and the appellant’s motion for a new trial was overruled on the 29th of the same month; and it appears from the indorsement of the clerk of this court that the record was filed in his office on the 25th of January, 1867, so that more than one year elapsed from the rendition of the final judgment until the record was lodged with the clerk of this court.

Section 343, Criminal Code, provides that the appeal should be prayed during the term at which the judgment was rendered and shall be granted upon the condition that the record is lodged in the [446]*446clerk’s office of the Court of Appeals within sixty days after the judgment.

It is apparent from this section of the Criminal Code, and it has been so ruled by this court that, in a prosecution for a misdemeanor, an appeal cannot be maintained unless the record is lodged in the office of the clerk of the Court of Appeals within sixty days after the judgment was rendered. As, therefore, the record was not lodged with the proper officer within the time prescribed, the motion of appellee must be sustained. Wherefore the appeal is-dismissed.

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Bluebook (online)

1 Ky. Op. 445, 1867 Ky. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelrouge-v-commonwealth-kyctapp-1867.