Opinion
No. 148
Decided August 13, 1949.
Criminal procedure — Bill of exceptions — Time for filing — Section 13445-1, General Code, mandatory — Trial judge without authority to allow and sign — Where not filed within statutory time — Reviewing court must affirm judgment, when — No bill of exceptions or assigned errors which can be considered.
1. The provision in Section 13445-1, General Code, which prescribes the period of time within which a bill of exceptions must be filed in a criminal case, is mandatory.
2. In a criminal case, where the bill of exceptions is not filed within the statutory time, the trial judge is without authority to allow and sign the bill.
3. Where there are no bill of exceptions and no errors assigned which can be considered in the absence of such bill, the reviewing court has no alternative but to affirm the judgment.
APPEAL: Court of Appeals for Shelby county.
ON MOTION to dismiss.
Mr. Rodney R. Blake, prosecuting attorney, and Mr. Carroll V. Lewis, for appellee.
Mr. Sam J. Hetzler, for appellant.
This cause is submitted on motion of the state to dismiss the appeal and affirm the judgment of the trial court upon the ground that the bill of exceptions was not filed within the time prescribed by law.
The defendant was charged, tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor. A motion for new trial was filed, which was overruled May 7, 1949. The bill of exceptions was not filed in the trial court until June 14, 1949. Thus it appears that the bill was filed more than 30 days after the overruling of the motion for a new trial. The period of time prescribed in Section 13445-1, General Code, within which a bill of exceptions must be filed in a criminal case, is mandatory. Where the bill is not filed within the statutory time, the trial judge is without authority to allow and sign the bill. Luff v. State, 112 Ohio St. 102, 146 N.E. 892; Kenney v. State, 18 Ohio Law Abs., 76; State v. McFarland, 36 Ohio Law Abs., 97; State v. Kenney, 43 Ohio Law Abs., 63. It appearing that there are no errors complained of which can be considered in the absence of a bill of exceptions, the reviewing court has no alternative but to affirm the judgment. 2 Ohio Jurisprudence (App. Rev.), 1713, Section 920; Luff v. State, supra; State v. Kenney, supra; Leitzy v. State, 6 Ohio Law Abs., 427.
An examination of the record shows that the defendant duly filed a notice of appeal and, also, within 30 days after sentence and judgment, filed in this court his motion for leave to appeal and a petition on appeal requesting the court to review the order and judgment of the trial court. Presumably the motion and petition were filed pursuant to Section 13459-4, General Code, which provides for such procedure after 30 days from sentence and judgment. No showing is made which would require this court to give favorable consideration to the motion or petition, both of which are denied. The judgment is affirmed.
Judgment affirmed.
MILLER, P.J., HORNBECK and WISEMAN, JJ., concur.