Cummins v. Commonwealth

Opinion op the Court by Judge McCandless Dismissing. The defendant was tried in the Caldwell circuit court and convicted of a misdemeanor, his punishment being fixed at a fine of $100.00 and imprisonment in the county-jail for 30 days. He filed motion for a new trial which was overruled on the 13th day of June, 1923, and he was granted an appeal to this court at that time and given until the second day of the October term, 1923, of that -court to tender and file bill of exceptions and transcript of evidence. He also executed supersedeas bond but did not file his transcript in this court until the 26th day of November, 1923. The Commonwealth has entered motion to dismiss the appeal for the reason that the transcript was not filed in the office of the clerk of the Court of Appeals within 60 days after the entry -of the judgment. Section 348 of the Criminal Code provides: “The appeal must be prayed during the term at which the judgment is rendered, and shall be granted upon the condition that the record be lodged in the clerk’s office of the Court of Appeals within sixty days after the judgment. ’ ’ In a number of decisions this statute has been construed and in every instance its provisions have been held to be mandatory. Com. v. McCrady, 2 Met. 376; Burge v. Com., 158 Ky. 424; Bass v. Com., 200 Ky. 230. [588] The only exceptions being a suggestion in the Bass and Burge cases, supra, that in proper cases this court might grant an extension of the time for filing the transcript. For the reasons indicated the appeal is dismissed.