State v. Leonard

157 S.W. 305, 250 Mo. 406, 1913 Mo. LEXIS 159

• Court: Supreme Court of Missouri
• Decided: May 20, 1913
• Status: Published

Opinion

WALKER, J.

Appeal: Not Perfected Within One Year. This case is before us on a motion filed by the Attorney-General to dismiss the appeal. The defendant was convicted in the circuit court of the city of St. Louis for setting up and keeping a gambling. device called a “crap game,” and his punishment assessed at six months’ imprisonment in the city workhouse. An appeal was allowed to this court on the 9th day of December, 1910. Defendant gave bond, and a stay was granted. The bill of exceptions was, after several extensions of time therefor, filed in the trial court, June 19, 1911. Nothing further was done in the matter until March 6, 1913, when defendant filed a transcript with the clerk of this court, thus perfecting the appeal. The motion of the Attorney-General is filed, under the- authority of the statute (Sec. 5313, R. S. 1900) which provides that in any felony other than where the sentence is death, the appeal shall be perfected within twelve months from the time the same was granted, and upon failure so to do, the court upon motion shall dismiss such appeal unless the defendant shall show good cause for not having .sooner perfected same.

The Attorney-General, after proper and timely notice to defendant, filed the motion to dismiss, March 22, 1913, and it was passed to he heard with the cause. At the present April term (April 10, 1913) the cause was called for hearing and was submitted on the motion to dismiss by the State, no brief having been filed or other appearance entered by the defendant. The statute (Sec. 5313, supra) is mandatory in its terms, and the court is limited in its enforcement only upon the showing of good cause by the defendant for not having perfected his appeal within the time prescribed.

The statute (Sec. 5312, R. S. 1909) dispensing with assignments of error and requiring this court to proceed upon the return of an appeal or writ of error in a criminal case and to speedily hear and determine the same upon the record,-has no application when the appeal is not perfected within twelve months from the time of the granting of same, except, of course, where a defendant shows good cause for delay beyond that time.

No right of appeal existed at common law; being purely of statutory creation, the Legislature may grant, withdraw or restrict the right as its discretion prompts in criminal as well as in civil cases. In order that a party may avail himself of the right to an appeal, he must conform to the requirements of the statute creating the right.

This the defendant Las .not done. Mo.re than two years had elapsed after the granting of his appeal before he perfected same by filing the transcript with the clerk of this court. No effort has been made to account for this unusual delay, and we are of the opinion that the motion to dismiss the appeal should be sustained, and it is so ordered.

Brown, P. J., and Faris, J., concur.