Nelson v. Commonwealth

23 S.W. 348, 94 Ky. 594, 1893 Ky. LEXIS 96

• Court: Court of Appeals of Kentucky
• Decided: September 26, 1893
• Status: Published

Opinion

CHIEF JUSTICE BENNETT

delivered the opinion of the court.

Section 760, Civil Code, provides: “That no mandate shall issue, nor decision become final, until after thirty days, excluding Sundays, from the day on which the decision is rendered,” &c.

Section 336, Criminal Code, provides as follows: “The appeal is taken by lodging in the clerk’s office of the Court of Appeals, within sixty days afier the judgment, a certified transcript of the record. The clerk of the Court of Appeals shall, thereupon, issue a certificate that an appeal has been taken, which shall suspend the execution of the judgment until the decision upon the appeal.”

It will be observed that the Civii Code is peremptory that no mandate in a civil action shall issue, nor decision become final thereon, until after thirty days from the day that the decision was rendered. That this provision applies to civil cases only, is made manifest by the fact that in criminal cases the clerk’s certificate suspends execution of the judgment “until the decision upon the appeal” only. As section760 of the Civil Code applies to civil cases only, and as there is no such provision in reference to criminal cases, but not penal, it follows that in case of an affirmance of a judgment of conviction the mandate may issue immediately.

Let the mandate in this case issue.