State v. Webb

Criminal Law — Appeal—Dismissal. Section 1621, L. O. L., provides that on appeal the clerk of the court must, within five days thereafter, or such further time as the court may allow, transmit a certified copy of the notice of appeal, etc.; and Section 1623 provides that the appellate court may, upon motion and notice, dismiss the appeal on failure to make a return required by Section 1621, unless good cause is shown. Held, that where more than five days elapsed between the last extension of time for filing a transcript and appeal and its actual filing in the Supreme Court the appeal will be dismissed, and the cause remanded below, with directions to re-sentence defendant.

On Motion to Dismiss. From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice McBride. The defendant, J. P. Webb, was convicted of the crime of murder in the first degree, and on the 20th day of October, 1910, was sentenced to death. On December 13, 1910, his notice of appeal to this court was duly served and filed, and on the same day a certificate of probable cause and stay of execution was granted, and an order made giving defendant until February 1st to file his transcript in this Court. No further order, extending such time, was ever made. The transcript was filed in this Court June 10, 1911. Section 1621, L. O. L., is as follows: “Upon the appeal being taken, the clerk of the court where the notice of appeal is filed must, within five days thereafter, or such further time as such court or the judge thereof may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll, to the clerk of the Supreme Court.” Section 1623, L. O. L., provides that the appellate court may, upon motion and notice, dismiss the appeal in case of failure to make the return required by section 1621, unless good cause to retain the appeal is shown.