Opinion
No. 18700
Decided March 10, 1925.
Criminal law — Bill of exceptions — Statutory duty of party mandatory — Limitation for filing bill can not exceed 30 days — Section 13680, General Code — Judgment affirmed where bill not filed within time.
1. Although the provisions of the statute defining the duties of the clerk and trial judge with respect to a bill of exceptions are directory, the requirements thereof relative to the duties of a party are mandatory in character and must be performed in the manner and within the time prescribed by statute.
2. In the prosecution of error by a defendant from an adverse verdict and judgment in a criminal case in the court of common pleas a bill of exceptions is not available unless filed therein within the time fixed by that court, which, under the provisions of Section 13680, General Code, as amended April 5, 1923 (110 O. L., 301), cannot be more than 30 days from the overruling of the motion for a new trial.
3. Where such bill of exceptions is not filed in the trial court within the time so prescribed, and the errors charged are such as can be disclosed only by a bill of exceptions, the judgment must be affirmed.
ERROR to the Court of Appeals of Cuyahoga county.
The questions presented arose upon a motion to dismiss this case upon the ground that the bill of exceptions containing a transcript of the testimony was not filed in the trial court within the time required by law, and that, therefore, the Court of Appeals was without jurisdiction to hear and determine the case on its merits and this court likewise without jurisdiction to review the judgment of the Court of Appeals.
Luff was indicted and convicted on a charge of embezzlement. The journal entries disclose that the verdict of the jury was returned October 24, 1923. The entry, after reciting the verdict of conviction, and stating that an opportunity was afforded the defendant to say anything he desired as to why sentence should not be pronounced, is as follows:
"It is ordered and adjudged by the court that said defendant, Morris F. Luff, be imprisoned and confined in the Ohio State Penitentiary, Columbus, Ohio, for a minimum period of seven years, and that he pay the costs of this prosecution for which execution is awarded. Thereupon the motion for a new trial by the defendant came on to be heard and was argued by counsel, the court after consideration overrules same and the defendant excepts. Defendant gives notice of intention to file bill of exceptions."
A further journal entry shows that on the same day, upon application of the defendant, the court ordered further suspension of the execution of sentence upon giving bond in the sum of $20,000 pending the filing and perfecting of error proceedings, and that such bond was given.
On November 30, 1923, a bill of exceptions was filed by the defendant, and notice issued. Thereafter a petition in error was filed in the Court of Appeals, and, subsequently, a motion by the state to dismiss, which motion was apparently not decided by the Court of Appeals, for that court thereafter affirmed the judgment of the court of common pleas. Upon motion of the defendant below this court granted leave to file a petition in error.
Messrs. Hogan, Hogan, Hogan Hogan and Mr. R.J. Fitzgerald, for plaintiff in error.
Mr. C.C. Crabbe, attorney general; Mr. Edward C. Stanton, prosecuting attorney, and Mr. James T. Cassidy, assistant prosecuting attorney, for defendant in error.
The only question now presented in this case involves the construction of the language of Section 13680, General Code, as amended in 110 Ohio Laws, 301, or rather the application of the provisions of that section to the facts presented in this case. Its language is clear and unambiguous. The provision that a defendant feeling himself aggrieved by a decision of the court may present his bill of exceptions thereto, which the court shall sign, and that such bill of exceptions shall be made a part of the record and have like force and effect as in civil cases, is followed by this language:
"The court shall fix the time within which such bill of exceptions shall be filed, which shall in no case be more than thirty days from the overruling of the motion for a new trial."
No argument can modify the mandatory effect of such language; even an order of the court cannot extend the time within which a bill of exceptions may be filed beyond the limit fixed by the statute, which is 30 days. In no case can it be more than 30 days.
The well-established rule that remedial provisions shall be liberally construed cannot be applied to relieve such a provision of its mandatory character. In the cases Cincinnati Traction Co. v. Ruthman, 85 Ohio St. 62, 96 N.E. 1019, Ann. Cas., 1913A, 911, and Pace v. Volk, 85 Ohio St. 413, 98 N.E. 111, this court held that a party should not be deprived of an opportunity of having his case reviewed by the failure of an official to perform a ministerial act after the exceptor had reduced to writing and duly filed his bill of exceptions in the office of the clerk within the time limited by law, but at the same time held that the requirement that "the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion for a new trial," is mandatory.
The cases to which we have just referred, and others, deal with provisions of the statute which have been declared to be directory in character, but, while doing so, as we have seen, do not relieve the exceptor of the discharge of the duty which is by positive language imposed upon him.
Where a bill of exceptions is not filed within the statutory time, the judge is without authority to allow and sign such bill. State ex rel. Anderson v. Spence, 94 Ohio St. 252, 113 N.E. 1048. It is urged that the limitation is not affected in this instance because a motion for a new trial was not in fact filed. The journal entry, through which, of course, the court speaks, discloses that on the same day on which the verdict was returned a motion for a new trial came on to be heard and was argued by counsel and overruled by the court, and an exception thereto taken by the defendant; and as a matter of fact one of the grounds stated and relied upon by the plaintiff in error in the Court of Appeals and here is that the court of common pleas erred in overruling the motion of defendant for a new trial. If it be true that a written motion for a new trial was not filed in the court of common pleas, and counsel for plaintiff in error is correct in the contention that the limitation of time cannot begin to run until the filing of such motion, he could confer upon his client the favor of an indefinite period of time in which to prepare and file a bill of exceptions by the very simple and expedient act of refraining from filing a motion for a new trial. It appears, however, that if it be considered that the overruling of the motion for a new trial became effective at the expiration of the 3-day period within which such motion is required to be filed, and the limitation of 30 days for a bill of exceptions, be calculated from that time, even this liberality of construction would not avail the plaintiff in error, for his bill of exceptions was filed four days later than the 30 days even thus liberally calculated.
Even if it be true, as claimed, that the failure to procure and file a bill of exceptions within the time prescribed by law was caused by the inexcusable delay on the part of the court reporter to furnish a transcript, the party seeking to prosecute error is not thereby relieved from the responsibility placed upon him by statute. He cannot delegate his duty, nor evade his responsibility. A party may procure a transcript of the evidence from the stenographer, who is required to furnish it on payment of the legal fee therefor; but in such event the only duty of the stenographer is to furnish such transcript. That is the most convenient way, and now the almost universal practice, but not the only method of preparing a bill of exceptions. The burden is upon the complaining party to comply with the mandatory requirements of the statute in any and all events if he desires to procure a review of an adverse judgment. Searles v. Cowdrick, 21 C. C. (N.S.), 378, affirmed by the Supreme Court without opinion 91 Ohio St. 371, 110 N.E. 1067.
The enforcement of limitations of a statute providing for the time and manner of prosecution of error is not a denial of due process of law, and therefore no violation of the provisions of Section 1, Art. XIV of the Constitution of the United States, for it is wholly within the discretion of each state to refuse a review in criminal cases or to grant it upon such terms as it prescribes. 12 Corpus Juris, 1209, and numerous cases cited.
The conclusion is irresistible that there was no valid bill of exceptions, and it appearing that none of the questions presented by the plaintiff in error can be determined upon the record properly before us, consisting of the indictment, plea and journal entries heretofore referred to, and there being no question as to the validity of the indictment, it follows that the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.