37 lies only from a final judgment.36 Moreover, there must be some words in an entry relied on as a judgment to show that there has been a judgment rendered. If the justice's court had no jurisdiction, an appeal from its decision gives the appellate court no jurisdiction, except to dismiss the prosecution for want of jurisdiction in the lower court.38 But where the justice had jurisdiction, the facts that the judgment as rendered is void, and that defendant may treat it as a nullity, do not prevent him from appealing from it.39 The words "conviction or order," in a statute allowing an appeal, have been held not to include an order of dismissal.40 So it has been held that an appeal will not lie from an order of a justice requiring one to give a bond to keep the peace, or from the dismissal of a complaint asking for such surety, or, by the prosecution, from an order refusing an amendment of the 396; Com. v. Jolly, 15 Pa. Dist. 305; pra § 162 et seq. McCallum v. Hurry, 3 Alta. L. 342. 41 42 36. State v. Beecher, 25 Conn. 539 (holding that no appeal lies from an interlocutory judgment of respondeat ouster). [a] A judgment imposing a fine and costs on conviction has been held to be a final judgment which would support an appeal. Colson v. State, 77 Tex. Cr. 572, 179 SW 560. 37. Marks v. State, 131 Ala. 44, 45, 31 S 18 (holding insufficient the minute entry in a prosecution for assault and battery reciting: "Thereupon, the court proceeded to hear the evidence, without the intervention of a jury... And, after hearing the same, finds the defendant guilty of assault and battery"). 38. Ala.-Martin v. State, 156 Ala. 89, 47 S 104. Ky.-Klyman v. Com., 97 Ky. 484, 30 SW 985, 17 KyL 237. Nebr.-Keeshan v. State, 46 Nebr. 155, 64 NW 695. N. M.-Terr. v. Valencia, 2 N. M. 108. N. Y.-Powers v. Peo., 4 Johns. 292. Tex.-Ex p. Hinson, 46 Tex. Cr. 587, 81 SW 987. Wis. Klaise v. State, 27 Wis. 462. 39. State v. Gowing, 27 Mo. A. 389; State v. Haas, 52 Wis. 407, 9 NW 9. 40. Reg. v. Toronto Public School Bd., 31 Ont. 457, 462 (where the court said: "The Ontario Summary Convictions Act" section 7, provides that "any party who considers himself aggrieved by a conviction or order made by a justice of the peace, or by a police or stipendiary magistrate, under the authority of any statute in force in Ontario, and relating to matters within the legislative authority of the Legislature of Ontario, may, unless it is otherwise provided by the particular Act under which the conviction or order is made, appeal therefrom to the General Sessions of the Peace.' The 'conviction or order' herein referred to, means a conviction or order of or against the party against whom the information and complaint is laid, and order, as here used does not include an order of dismissal"). 41. State v. Gregory, 118 N. C. $199, 24 SE 712; State v. Walker, 94 N. C._857; State v. Lyon, 93 N. C. 575. But see Jones v. State, 70 Miss. 398, 12 S 710 (holding that one charged with vagrancy and required by a justice of the peace to give bond for good behavior or be committed to jail may appeal to the circuit court). 10. 46. warrant and adjudging the prosecution frivolous.43 Appeal dependent on amount involved. In some jurisdictions an appeal will lie where payments which accused is ordered to make in a prosecution for the nonsupport of a minor child will amount to at least one hundred dollars during the continuance of the bond required for compliance by him with the order of support.44 [§ 676] c. Appellate Jurisdiction.45 The courts to which appeals or writs of error may be taken from judgments of justices of the peace and other inferior courts are designated by statute, and the statutes vary in the different jurisdictions.46 The appeal must be to a superior court.47 An appeal from one inferior court does not lie to another inferior court, standing on practically the same footing as the court from which the appeal is taken.48 Where the appeal is a condition precedent to the exercise act of April 22, 1794, lies to the court of quarter sessions and not to the court of common pleas, such case being a summary conviction and not a judgment for a penalty. Com. v. Fasnacht, 12 Pa. Dist. 327. (3) Defendant, by appealing to the court of quarter sessions from a conviction of an offense of a class of which that court has general jurisdiction, is precluded from questioning the general jurisdiction of the court on the ground that the appeal was not allowed. Com. v. Hammer, 9 Pa. Dist. 251. See statutory provisions; and: Cal.-Peo. v. Fowler, 9 Cal. 85. 276. Ill. Neatherly v. Peo., 24 Ill. A. Ind.-Baptiste v. State, 5 Blackf. 283. 322. La.-State v. Winfield, 127 La. 755, 53 S 980; State v. First Dist. Ct. Judge, 113 La. 654, 37 S 546. N. Y.-Peo. v. Glaze, 65 Lun 560, Pa.-Mechanicsburg Borough V. R. I.-State v. Crogan, 6 R. I. 40. Va.-Jenigan v. Com., 104 Va. 850, Ont.-Rex v. Wells, 24 Ont. L. 77, 2 OntWN 1232, 19 OntWR 452, 18 CanCrCas 377. Que.-Pope v. Griffith, 16 LCJur 169. [a] In New Jersey P. L. (1908) p. 442, conferring on the common pleas court power to review convictions in summary proceedings before a police justice, is not unconstitutional as impairing the jurisdiction of the supreme court, as the judgment of the common pleas is ultimately supervised in the supreme court on certiorari. Summit V. Iarusso, 87 N. J. L. 403, 94 A 806; Newark v. Kazinski, 86 N. J. L. 59, 90 A 1016. [b] In Oklahoma county courts have concurrent jurisdiction with district courts of appeals from judgments of police courts. Gregg v. Kingfisher, 8 Okl. Cr. 8, 125 P 1093; Meloy v. Woodward, 7 Okl. Cr. 16, 120 P 1119. [c] In Pennsylvania (1) under the provisions of the act of April 17, 1876 (P. L. p 29), appeals in cases of summary conviction are allowed only to the quarter sessions, and appeals for suits for penalties are allowed only to the common pleas. Scranton v. Frothingham, 5 Pa. Dist. 639; Johnston v. Rose, 28 Pa. Co. 188. (2) An appeal from a convic45. Jurisdiction generally see su- tion for profane swearing under the 42. State v. Long, 18 Ind. 438. 43. State v. Taylor, 118 N. C. 1262, 24 SE 526. 44. Donahy v. State, (Del.) 100 A 696. [d] In British Columbia an appeal from a conviction under Summary Convictions Act § 72 must be brought in the county court of the county within which the offense is alleged to have been committed. Rex v. Brady, 20 B. C. 217. [e] In Nova Scotia, notwithstanding the Summary Convictions Act § 127 which makes the conviction final "except as in this chapter otherwise provided," an appeal lies from a conviction or order of a stipendiary magistrate to the supreme court, by way of case stated, where the point sought to be raised is not frivolous, and is of an arguable character. Rex v. McNutt, 42 N. S. 180. [f] In Saskatchewan (1) the court appealed to is the absolute judge of facts and law, and the judge of this court cannot, by referring any question to the court in banc, confer authority on it to advise in respect to such questions. Mischowsky v. Hughes, 2 Sask. L. 219. (2) The sittings of a district court which shall be held "nearest" to the place where the cause of the information or complaint arose and to which in Saskatchewan an appeal from a summary conviction is to be taken, means, prima facie the nearest, measured in a straight line on a horizontal plane, but if it is shown that another place for which a session of the court is fixed is more convenient of access, having regard to the recognized means of travel, appellant will be deemed to have complied with Cr. Code § 749, if he brings his appeal either there or at the place which is nearest when measured in a straight line. Rex v. Georget, (Sask.) 19 Dom LR 404, 23 CanCrCas 341. 47. Anderson v. Fowler, 48 S. C. 8, 25 SE 900 (holding that under the South Carolina constitution all municipal courts are inferior courts, standing on practically the same footing as a justice's court, and that the limiting of a defendant's right of appeal from one municipal court to an appeal to another municipal court is unconstitutional). 48. Anderson v. Fowler, 48 S. C. 8, 15, 25 SE 900 (where the court said: "Every municipal court, no matter how constituted-whether of jurisdiction by the appellate court to indict for and to punish a particular offense, such court does. not acquire jurisdiction of the subject matter where there is no such appeal.49 In some jurisdictions the legislature can restrict but cannot enlarge the appellate jurisdiction.50 [677] d. Time of Taking Appeal. The time within which an appeal or writ of error from a summary conviction must be taken is fixed by statutory provisions which must be strictly observed.51 The period ranges from immediately, or within twentyfour hours, to ten days and upward.52 The court has no power to extend the time fixed by law.53 [678] e. Bond, Undertaking, Deposit (1) In General. Whether security on appeal is necessary depends upon the statute. In some jurisdictions security is a condition precedent to the right of appeal,54 in others it is not necessary to the jurisdiction of the appellate court.55 By express provision in some jurisdictions failure to give a bond or recognizance does not prevent the appeal.56 Where the application is on behalf of the prosecutor, security is not required.57 Where a bond for costs is required in criminal appeals from justices of the peace, an appeal cannot be prosecuted in forma pauperis, unless permitted by statute.58 Appearance bail. An appeal from a judgment of a justice, if claimed within the time limited, must be allowed whether bail for appearance is procured as provided by statute or not.59 If it is not proeured appellant simply remains in custody.60 Deposit. Where a statute provides that a motion to quash a conviction shall not be entertained unless the applicant is shown to have entered into a recognizance, or to have made a deposit of a designated amount, the fact that defendant is unable to enter into a recognizance because he is an infant does not excuse him from making the deposit provided for by the statute; and on failure to do so, his motion to quash the conviction will be dismissed.63 Where on an appeal from a summary conviction appellant makes a money deposit in lieu of recognizance, the deposit, which includes both the fine and the security for costs of appeal, should be returned by the justice into the appellate court, and in default the appeal cannot be heard.64 Even though a county court does not possess jurisdiction to permit the giving of cash bail on an appeal from a conviction by a police magistrate, upon a summary trial, an appeal is not lost where the attorney for the prosecution assents to the acceptance by the court of such bail, receives payment of the money, and permits the prisoner to go at large.65 [§ 679] (2) Time of Execution. In the absence of statutory provision to the contrary the appeal bond or recognizance may be executed at any time after conviction;66 but after the court is opened for the hearing of the appeal, it is then too late for Rex v. Geiser, 8 B. C. 169, 21 CanLT OccNotes 604; Reg. v. King, 7 B. C. 401, 4 CanCrCas 128. consisting of the mayor of the city | A. 548, 551. To same effect State v. | 249; State v. White, 41 N. H. 194; or of the city council-established Anderson, 84 Mo. 524. (2) In the under the authority of sec. 1, of art. IV., of the Constitution, is certainly an inferior court, and to give the right of appeal from the municipal court, consisting of the mayor alone, to another municipal court, consisting of the city council, would be merely giving the right of appeal from one inferior court to another inferior court, from which there would still be the right of appeal, and thus the object of the constitutional provision 'saving the right of appeal' would be practically defeated"). 49. Com. v. Hooper, 55 Pa. Super. 518. Mass.-Weiner v. Wentworth, 181 Mass. 15, 62 NE 992. Nebr.-In re Newton, 39 Nebr. 757, 58 NW 436. Oh-State v. Langenstroer, 67 Oh. St. 7, 65 NE 152. Pa-Fairchild v. Best, 6 Pa. Dist. 478; Com. v. Rosenthal, 3 Pa. Co. 669. Va.-Combs v. Com., 95 Va. 88, 27 SE 817. Wis.-Ridgley v. State, 7 Wis. 661. See also State v. Delano, 37 Ind. 249 (where the court said: "We are not prepared to say that an appeal might not be ordered after the expiration of thirty days, where the party, through poverty and the lack of acquaintance with the community, had not been able to perfect it within the time required"). [a] In Missouri (1) Rev. St. § 2058 requires an appeal in such cases to be taken immediately after conviction, but it "will not be so literally construed as to have the effect of denying to defendant the right of appeal." State v. Herman, 20 Mo. absence of satisfactory reasons for [b] In Virginia, under Code § [c] In West Virginia (1) under Code c 50 § 230 (ser. § 2785), which is somewhat similar to the Virginia statute referred to supra this note, it has been held that the demand for an appeal need not be made at the very hour or day of the rendition of the judgment, but may be made within a reasonable time. Emsweller v. Wallace, (W. Va.) 88 SE 787 (holding that an appeal demanded within ten days should have been granted). 53. State v. Kunbert, 14 Ind. 374; State v. Gandy, 87 S. C. 523, 70 SE 163; Gibbes v. Beckett, 84 S. C. 534, 66 SE 1000. See also Com. v. Woodhead, 18 Pa. Dist. 549, 550 (where the court said: "It is, no doubt, a good cause for an allowance of the appeal; but to entertain it now would in effect be an allowance of an appeal two months after the expiration of the statutory period allowed for that purpose, and without showing any cause or excuse for such delay"). 54. Ex p. Reese, 112 Ala, 63, 21 S 56; Doyle v. Mobile, 12 Ala. A. 622, 68 S 494; State v. Delano, 37 Ind. [a] Presumption.-Under Sess. L. (1861) p 80, requiring a party desiring to appeal from a conviction before a justice of the peace to enter into a recognizance, where a justice before whom such party has been convicted was sued for damages for refusing to accept an instrument tendered to him by the party convicted for the purpose of making appeal, and the instrument so tendered is spoken of in the record as a bond, and no objection was made that it was a bond and not a recognizance, the supreme court will assume that it was a recognizance in due form. Guenther V. Whiteacre, 24 Mich. 504. 55. Peo. v. Youngberg, 53 Colo. 322, 124 P 745; Rhodes v. Com., 7 KyL 515; Sires v. State, 73 Wis. 251, 41 NW 81; Schieve v. State, 17 Wis. 253. [a] In Texas if defendant is in custody no bond is necessary, but he may give bond and secure his liberty pending appeal. Burt v. State, (Cr.) 186 SW 770. 56. Tarkio v. Loyd, 109 Mo. A. 171, 82 SW 1127. 57. Re Martin, 20 Ont. L. 295, 14 OntWR 969, 15 OntWR 129. 58. Parks v. State, 37 State v. Delano, 37 Ind. 249. 59. Ark. 97; In re Kennedy, 55 Vt. 1; Meyers v. Wonnacott, 23 U. C. Q. B. 611. 60. See cases supra note 59. 61. Dixon v. State, 121 Ga. 346, 49 SE 311; Laws v. State, 15 Ga. A. 361, 83 SE 279. 62. Stallworth v. Macon, 125 Ga. 250, 54 SE 142; Thomas v. Atlanta, 6 Ga. A. 393, 65 SE 32; Simon v. Savannah, 4 Ga. A. 172, 60 SE 1036; McDonald v. Ludowici, 3 Ga. A. 654, 60 SE 237. 63. Rex V. Reid, 12 OntWR 64. Rex V. Neuberger, 9 B. C. 1037. 272. 65. Robinson V. Saanich, etc.. Dist., (B. C.) 7 DomLR 499, 20 West LR 235. 66. Smith v. Boykin. 61 Miss. 110. appellant to file his recognizance.67 68 .69 [§ 680] (3) Sufficiency. Slight or immaterial irregularities, defects, or omissions in a bond or recognizance required by statute may be disregarded. As a rule, even when it is insufficient, the court should allow an amendment if application is made therefor within a reasonable time;" or should accept a good and sufficient bond if one is tendered.70 But at least a substantial compliance with the statutory requirements is necessary, otherwise the giving of a notice of appeal will be unavailing,72 and the appeal may be dismissed.73 In such a case jurisdiction is not conferred by the appearance of defendant and the district attorney.74 193. 71 "with a condition to prosecute such motion and writ of certiorari," no written document is necessary, it being sufficient that the money provided for is placed in the hands of the registrar for the purposes provided by law.75 [§ 681] f. Proceedings for Review on Appeal or Writ of Error. The procedure with respect to notice, hearing, etc., on appeal or writ of error from a justice of the peace or other inferior court, is regulated by statutory provisions, and depends entirely upon the statute in the particular jurisdiction.76 Since an apeal is not a common-law right," a compliance with these requirements is a condition precedent to jurisdiction,78 and cannot be waived.79 Notice of appeal. Notice of appeal usually is required by the statutes of the various jurisdictions,80 been rendered against the obligor "in said justice court," the obligor and sureties bound themselves to pay all costs adjudged "in said justice court," the appeal was properly dismissed. Bryant v. State, (Tex. Cr.) 58 SW 1021. Deposit. Notwithstanding a rule of court requires a deposit of a designated amount to be made 67. Bestwick v. Bell, 1 Terr. L. ment, defendant's recognizance on an appeal therefrom need not cover the 68. Ark. Laur v. State, 94 Ark. fine and costs, the imprisonment 178, 126 SW 840. fixed in default of payment being sufficient security for that; the basis on which the amount of the recognizance should be fixed in such case is what the probable costs of the appeal would be. Rex v. McDermott, (Sask.) 19 DomLR 321, 7 West Wkly 164. Ind.-State v. Richards, 77 Ind. 101 (failure to state amount of penalty); Ott v. State, 35 Ind. 365 (condition to "pay such judgment as may be rendered," where imprisonment is part of the punishment provided). Kan.-Ottawa v. Johnson, 73 Kan 165, 84 P 749, 9 Ann Cas 707 (lack of signature of surety). Okl.-Paschal v. State, 7 Okl. Cr. 41, 121 P 792. 515 Tex.-Goree v. State, (Cr.) 82 SW (failure to contain number of case appealed); McGill v. State, 36 Tex. Cr. 108, 35 SW 656 (excessive amount); Eichman v. State, 22 Tex. A. 137, 2 SW 538; Miller v. State, 21 Tex. A. 275, 17 SW 429 (failure to state offense of which appellant was convicted); Taylor v. State, 16 Tex. A. 514 (failure of justice to indorse approval). Wis. Sires v. State, 73 Wis. 251, 41 NW 81 (bond according to form in civil cases); Schieve v. State, 17 Wis. 253. Ont.-Rex v. Tucker, 10 Ont. L. 506, 6 OntWR 533; Rex v. Tucker, 10 CanCrCas 217. Sask.-Rex v. Koogo, 19 WestLR 246. [a] Thus, on appeal from a summary conviction imposing a fine, and in default of payment imposing imprisonment, the appellate court is not deprived of jurisdiction to hear the appeal by a clerical error in the recognizance, whereby the amount of the appellant's obligation is omitted, although filled in as to the sureties. Rex v. Koogo, (Sask.) 19 WestLR 246. 69. Weist V. Peo., 39 Ill. 507: Fairchild v. Best, 6 Pa. Dist. 478. But compare Guenzel V. State, 47 Tex. Cr. 111, 80 SW 371 (holding that where an appeal bond has been given, it cannot subsequently be amended). 70. Nelson v. State, 56 Tex. Cr. 228, 119 SW 846; Moore v. State, 49 Tex. Cr. 43, 90 SW 499. [a] "In England the law has been amended in that connection by the General Quarter Sessions Procedure Act, 12 & 13 Vic. c. 45, s. 8. That statute empowers the Court, in cases where the recognizance is in any way invalid, to allow the substitution of a new and sufficient recognizance." Bestwick v. Bell, 1 Terr. L. 193, 194. 71. Rex v. Geiser, 8 B. C. 169, 21 CanLTOceNotes 604; Reg. v. Joseph, 11 Que. Q. B. 211, 6 CanCrCas 144 (recognizance with only one surety held bad). [a] A recognizance to which the applicant is not a party is fatally defective. Re Western Co-operative Constr. Co., (Man.) 2 WestLR 541. [c] The omission of the word "personally," from the condition to appear and try the appeal and abide the judgment of the court thereupon, rendered a recognizance entered into under the statutes of New Brunswick insufficient. Rex v. Wedderburn, 36 N. B. 213. 74. Koller v. Peo., 45 Colo. 65, 99 P 316; Guenzel v. State, 47 Tex. Cr. 111, 80 SW 371. 75. Reg. V. Davidson, (N. W. Terr.) 21 CanLTOccNotes 98. 76. Ida.-State v. Cowen, 29 Ida. 783, 162 P 674. Mo.-Cox v. State, 9 Mo. 181. N. H.-State v. Gerry, 68 N. H. 495, 38 A 272, 38 LRA 228. Or.-State v. Zingsem, 7 Or. 137. Pa.-Com. v. Johnston, 1 Pa. Co. B. C.-Rex v. Jordan, 9 B. C. 33, 22 CanLTOccNotes 219. Ont.-Reg. v. Law, 27 U. C. Q. B. 260. [d] Sufficiency of justification.-22. (1) Under a rule of court of the Northwest Territory made under Cr. Code § 892 requiring sufficient surety for a specific amount, there is compliance if the sureties justify as being worth the amount over and above all their just debts and liabilities, and over and above all exemptions allowed by law. Reg. v. Ashcroft, 4 Terr. L. 119. (2) Where the affidavit accompanying a recognizance filed on a motion for a rule nisi to quash a conviction did not negative the fact of the sureties being sureties in any other matter, and omitted to state that they were worth one hundred dollars over and above any amount for which they might be liable as sureties, it was held insufficient. Reg. v. Robinet, 16 Ont. Pr. 49. 72. Reg. v. Joseph, 11 Que. Q. B. 211, 6 CanCrCas 144. 73. State v. Mattson, 105 Minn. 63, 117 NW 227; Rex v. Wedderburn, 36 N. B. 213. limitation, [a] Unauthorized Where a certiorari bond only bound petitioner to appear and abide final judgment of the recorder's court, or of the superior court "in the event said certiorari should be refused," this placed a limitation on it wholly unauthorized by law, and sanction of the certiorari was properly refused. Thomas v. Atlanta, 6 Ga. A. 393, 65 SE 32. [b] Where an appeal bond is for an amount less than is prescribed by law, the bond is fatally defective and the appellate court cannot allow a new bond, sufficient in amount, to be filed, but will dismiss the appeal. Miller v. State, 21 Tex. A. 275, 17 SW 429. [c] Approval by wrong person.— Where a statute requires an appeal bond to be approved by the clerk of the county court, approval by the justice is insufficient to confer jurisdiction on the appellate court. Koller v. Peo., 45 Colo. 65, 99 P 316. [d] Variance between caption and body of bond.-Where, on appeal from a corporation court the caption of the bond was as follows. "In the Corporation Court of the City of P. Precinct No. -,"-but the bond [b] Amount for which recognizance given.-Where a summary conviction directs payment of a fine and, in default of distress, imprison- stated that, whereas judgment had The [a] In New York "to perfect such an appeal an undertaking must be given and immediately filed with the clerk of the County Court; and that officer is required, within five days thereafter, to give notice to the district attorney that such bond has been filed, which notice shall give the names of the defendant and his sureties, the offense for which the defendant was charged and the amount of the bail given. Section 754. affidavit must be delivered to the magistrate within five days, and when SO delivered the appeal is deemed taken. Section 755. Other sections point out the duty of the magistrate as to making a return, the filing of the same in the office of the county clerk and the time within which he shall so make and file it" Peo. v. Cimini, 53 Misc. 525, 527, 105 NYS 476. [b] In British Columbia the transmission of the case to the proper registry as required by § 86 of the Summary Convictions Act is a condition precedent to the jurisdiction conferred by §§ 90, 92 and where that provision has not been complied with the court has no jurisdiction to entertain the appeal. Cooksley v. Nakashiba, 8 B. C. 117, 21 CanLTOce Notes 492. [c] In Ontario appeals from convictions are governed by provincial, and not dominion, legislation. Reg. v. Robert Simpson Co., 28 Ont. 231. 77. Reg. v. Joseph, 11 Que. Q. B. 211, 6 CanCrCas 144. See also supra § 672. 78. Morgan v. Edwards, 5 H. & N. 415, 157 Reprint 1243; Cooksley v. Nakashiba, 8 B. C. 117, 21 CanLTOcc Notes 492; Rex v. Dolliver Mountain Min., etc., Co., (N. S.) 10 CanCrCas 410; Reg. v. Joseph, 11 Que. Q. B. 211, 6 CanCrCas 144; Rex v. Edelston, (Sask.) 17 CanCrCas 155, 15 WestLR 279; Rex V. Williamson, (Sask.) 7 West LR 490. 79. Rex v. Edelston, (Sask.) 17 CanCrCas 155, 15 WestLR 279. 80. See cases infra notes 81-95. 85 and a notice which is not at least in substantial compliance with these requirements will be dismissed.81 The statutes usually fix the time for filing notice of appeal,82 and designate the person or officer on whom it should be served;83 as for instance, the justice who rendered the decision,84 the prosecutor,s or the prosecuting attorney,86 and sometimes the notice must be given orally in open court and be entered on the docket of the justice.87 The sufficiency of the notice must appear either from the notice itself or by reference to another paper in the case.88 The court must be able to determine what particular judgment was rendered, and to identify the judgment from the notice,89 but a notice which is somewhat uncertain, but which may be rendered certain by a reference to the complaint and to the justice's docket, has been held sufficient.90 Inaccuracy or mistake in the description of the judgment appealed from will not invalidate the notice if, notwithstanding such inaccuracy or mistake, the judgment intended is designated with reasonable certainty.91 The fact that the offense of which appellant was convicted is not described in the notice with the fullness requisite in a criminal complaint is immaterial.92 Where the statute provides that defendant shall make the affidavit, his agent or attorney is not authorized to make it for him.93 It is sufficient that notice of appeal from a summary conviction is proved by affidavit and not by calling a witness on the return of the appeal to prove the service. In some jurisdictions the justice must direct where the appeal shall be tried.95 Notice of intention to apply for a writ of error should be given, in some jurisdictions, when the first exception is taken; 96 but it will not be necessary to repeat the notice with every exception that is taken.97 Application for leave to appeal. Under some statutes an application for leave to appeal is necessary.98 These statutes designate the courts to which the application shall be made.99 Statutory requirements as to the contents of the application must be complied with;1 the application should contain specific information to enable the court to determine whether the cause alleged is sufficient to grant permission to appeal; it must allege that previous notice of intent to appeal had been given to the complainant; and a copy of the record must be affixed, or it must be alleged that such copy could not be had by paying for it.* Application for stated case. Under some statutes and rules of court, it is essential that an application be made to the justice rendering the decision to state a case for appeal. This application must be made within a reasonable time, although no time has been prescribed by statute or rule of court." And it must request the justice to state and sign a case in writing setting forth the facts and the grounds on which the proceeding was questioned.? [ 682] g. Transcript of Record-(1) In General. On appeal from a conviction before a justice of the peace or a police court, an authenticated transcript of the record must be transmitted to the appellate court. It usually is the duty of the magistrate or the clerk and not of the appellant to file such transcript." It is an official act, and can be performed only within the territorial limits allowed for the exercise of the duties of the office.10 If the statute does not prescribe the time within which the record shall be transmitted it may be transmitted 81. Rex v. Brimacombe, (Sask.) who tried the case?"). 2 WestLR 53. 82. See Rex v. Trottier, 6 Alta. L. 451 (holding that if the date on which notice of appeal would otherwise have to be filed falls on a holiday, a notice will be sufficient if filed on the day next following which is not a holiday). 85. Hostetter v. Thomas, 4 Terr. L. 224; Keohan v. Cook, 1 Terr. L. 125 (where a notice of appeal addressed to the magistrate only, and not served upon the informant, was held bad). 87. McDougall v. State, 32 Tex. Cr. 174, 22 SW 593; Parker v. State, (Tex. Cr.) 21 SW 370. 88. U. S. v. Larsen, 2 Alaska 577. 89. U. S. v. Larsen, 2 Alaska 577; Jenson v. Esmeralda County Seventh Judicial Dist. Ct., (Nev.) 161 P 162; Rex v. Mah Yin, 9 B. C. 319. 86. State v. Cowen, 29 Ida. 783, 162 P 674; State v. Jones, 55 Minn. 83. See cases infra notes 84-87. 329, 56 NW 1068; Jensen v. Esmer[a] Service as affected by agree-alda County Seventh Judicial Dist. ment. Where on an appeal from a Ct., (Nev.) 161 P 162; Peo. v. Cimini, conviction under the Indian Act c 81 53 Misc. 525, 105 NYS 476. 135, the Indian agent who has made the conviction consents to service of the notice of appeal upon a certain inspector of the R. N. W. M. P., but owing to the latter's absence the notice is served upon the officer acting in his place, and the notice is effective in securing the appearance on the appeal of the solici- [a] Thus notice of appeal from tor for the Indian department, the conviction for playing in a common Indian agent and the witnesses who gaming house which describes the appeared on the trial, and defendant offense for which appellant was conalso appears and the original convic-victed as "looking on while another tion and the recognizance are pro- was playing in a common gaming duced from the proper custody, it house" is insufficient, Rex v. Mah should be held that there was suffi- Yin, 9 B. C. 319. cient service of the notice of appeal. Rex v. Trottier, 6 Alta. L. 451. 84. Peo. v. Thomas, 71 Misc. 365, 127 NYS 891; Ex p. Curtis, 3 Q. B. D. 13 (where a notice to the justices generally, and not to the individual justices who sat in the case, was held bad); Rex v. Jordan, 9 B. C. 33, 22 CanLTOccNotes 219; Ex p. Doherty, 25 N. B. 38; Cragg v. Lamarsh, 3 Terr. L. 91. 90. Jensen v. Esmeralda County Seventh Judicial Dist. Ct., (Nev.) 161 P 162. 91. State v. Barnard, 13 Ida. 439, 90 P 1; Cowles v. Neillsville, 137 Wis. 384, 119 NW 91. 92. Jensen v. Esmeralda County Seventh Judicial Dist. Ct., (Nev.) 161 P 162. 93. State v. Sexton, (Mo. A.) 189 SW 605; State v. Meed, 124 Mo. A. 413, 101 SW 714. 94. Rex v. Curran, (Sask.) 22 Can CrCas 388. 95. State v. Regard, 65 Kan. 716, 70 P 634 (under L. [1901] c 156 § 5). 96. Tubins v. District of Columbia, 21 App. (D. C.) 267. [a] Several justices.-Under some provisions notice must be given to all the justices before whom the trial and conviction was had. Rex v. Edelston, (Sask.) 17 CanCrCas 155, 156, 15 WestLR 279 (where it was said: "Where the service has been made upon only one justice of the peace in a case which requires two justices of the peace to constitute a Court, how can it be said that the notice was served upon the justice B. 222. 97. Tubins v. District of Columbia, 21 App. (D. C.) 267. 98. 99. See cases infra notes 99-4. 5. Rex v. Ferguson, 12 Ont. L. 411, 8 OntWR 306. 6. Rex V. Ferguson, 12 Ont. L. 411, 8 OntWR 306. 7. Rex v. Earley, (N. W. Terr.) 3 WestLR 189. 8. Ark.-Ex p. Perrin, 41 Ark. 194. Mass.-Com. v. Sheehan, 12 Gray 28; Com. v. Burns, 8 Gray 482; Com. v. Doty, 2 Metc. 18. Miss. Cawthon v. State, 100 Miss. 834, 57 S 224. Mont. In re Grave, 36 Mont. 394, 93 P 266. Pa. Com. v. Brant, 36 Pa. Super. 454; Com. v. Brandt, 36 Pa. Super. 453; Com, v. Weimer, 36 Pa. Super. 451, 453. N. W. Terr.-Reg. v. Riel, 1 Terr. L. 20. 9. Cain v. State, 86 Ark. 455, 111 SW 267; Com. v. Bray, 117 Mass. 150 (holding that, when transmission is by the clerk, an order of the inferior court authorizing the transmission of the record is unnecessary); Allen v. State, 98 Miss. 192, 53 S 498. [a] City clerk.-A copy of the record must be certified to by the justice of the peace, or police justice, and a certification by the city clerk is insufficient to give the circuit court jurisdiction on appeal. Rodgers v. Hattiesburg, 99 Miss. 639, 55 S 481. 10. State v. Durein, 65 Kan. 700, 70 P 601. at any time before the new trial, or at any time before the appeal is actually heard;12 and the failure of the justice to transmit the record within the statutory period does not deprive accused of his appeal.13 But in some jurisdictions appellant is required to file the transcript in the appellate court within a specified time and his failure so to do is ground for dismissal.14 The statutes generally require the justice to certify up the original complaint to the appellate court;15 but it has been held that it is not necessary that any formal certificate of that fact should appear upon the complaint.16 The transcript of the record must be certified to be a true copy,' and must be properly attested by the clerk or justice,18 but the annexation of a seal is unnecessary unless the statute requires it.20 The certification may be at the end of the record.21 The court may 11. State v. Durein, 65 Kan. 700, 70 P 601 (holding that a certification made after the trial has begun and over defendant's objection will not have relation back as of the time when it should have been made); Com. v. McPherson, 147 Mass. 578, 18 NE 417; Com. v. Wiggins, 111 Mass. 428. 12. Harwood V. Williamson, 1 Sask. L. 58, 14 CanCrCas 76. 13. State v. Cressinger, 88 Ind. 499; In re Ryer, 46 U. Č. Q. B. 206; Harwood v. Williamson, 1 Sask. L. 58, 14 CanCrCas 76 (both holding that for the purposes of an appeal a conviction may be returned and proved at any time during the hearing of the appeal, as there is nothing which makes it necessary that the formal conviction should have been returned and filed before the appeal is entered, or before the hearing is commenced); Rex V. Turnbull, 2 Sask. L. 186. 14. Rayville v. Long, 136 La. 1089, 68 S 135. 15. State V. Anderson, 34 Kan. 116, 8 P 275; State v. Anderson, 17 Kan. 89; Com. v. Auchy, 29 Pa. Co. 135. 16. Topeka v. Dupree, 8 Kan. A. 286, 55 P 511; Topeka v. Raynor, 8 Kan. A. 279, 55 P 509. 17. State v. Anderson, 17 Kan. 89; Com. v. Munn, 156 Mass. 51, 30 NE 86; Com. v. Doran, 14 Gray (Mass.) 37; Com. v. Sheehan, 12 Gray (Mass.) 28. [a] Certification by special justice. Com. V. McCarty, 14 Gray (Mass.) 18. 18. Com. V. Hogan, 11 Gray (Mass.) 313; Com. v. Burns, 8 Gray (Mass.) 482; St. Louis v. Bird, 31 Mo. 88. [a] Justice.-(1) Attestation of a copy of the record by a justice of the peace as "justice," without adding the words "of the peace," is sufficient. Com. V. Downing, 4 Gray (Mass.) 29. (2) The same is true of an attestation as "justice" instead of "trial justice." Com, v. McParland, 145 Mass. 378, 14 NE 164. [b] Clerk-(1) The signature of the clerk of a police court, followed by the word "Clerk," is a sufficient attestation of a record sent up on appeal to the superior court. Com. v. Barry, 115 Mass. 146; Com. v. Belou, 115 Mass. 139; Com. v. Dow, 11 Gray (Mass.) 316. (2) Attestation by "James B. Stacy, clerk pro tem.." is sufficient without stating the cause of the appointment of a clerk pro tempore. Com. v. Connell, 9 Allen (Mass.) 488. [c] Time of attestation see Com. v. Douglass, 3 KyL 685. 19. Com. v. Barry, 115 Mass. 146; Com. v. Bellows, 115 Mass. 139; Com. v. Cavey, 97 Mass. 541. 20. Zupanic v. Collinwood, 16 Oh. Cir. Ct. N. S. 213. 21. Com. v. Wait, 131 Mass. 417; 17 19 postpone the proceedings in order that the justice [§ 683] (2) Contents. The transcript must show that the justice had jurisdiction of the cause,23 and that defendant committed the act complained of;24 it must also show, among other things, the offense charged,25 a sufficient complaint and other facts necessary to sustain the conviction;26 the names of the witnesses,27 the substance of the testimony," and the taking of the steps necessary to perfect the appeal.29 [§ 684] (3) Defects and Omissions; Amendments. Any informality in the record is rendered immaterial by appeal.30 A justice of the peace may amend his transcript sent up on appeal, so as to make it a correct transcript of all the entries in his Com. v. Barry, 115 Mass. 146; Com. | roneous decision or determination of v. Ford, 14 Gray (Mass.) 399; Com. law or fact on a trial in a magisv. Hogan, 11 Gray (Mass.) 313. trate's court, there is an implied re22. State v. Plomondon, 75 Kan. quirement that the testimony on the 853, 90 P 254. trial should be preserved and returned to the appellate court, since otherwise there could be no review of a determination of fact. Peo, v. Benison, 32 Misc. 366, 66 NYS 734, 15 N. Y. Cr. 142. (2) Where the affidavit on which the appeal is allowed alleges no errors with reference to a determination of the facts, a return of the evidence is not required. Peo. v. Giles, 152 N. Y. 136, 46 NE 326. 23. State v. Cowdon, 85 Mo. A. 403; Powers v. Peo., 4 Johns. (N. Y.) 292; Com. v. Clauss, 5 Pa. Dist. 658, 18 Pa. Co. 381 (holding that the court cannot take judicial notice of the fact whether or not the place where an offense is alleged to have been committed is within the county). [a] Thus in a summary conviction for the violation of a borough ordinance, the proceedings will be reversed, in the absence of anything on the record to show that defendant was either arrested or summoned. Com. v. Beidleman, 27 Pa. Co. 272. 24. Com. v. Clauss, 5 Pa. Dist. 658, 18 Pa. Co. 381. 25. Esping v. Elizabeth S. P. C. C., 79 N. J. L. 357, 75 A 547. 26. Cummings Case, 3 Me. 51 (holding that a conviction of larceny could not be sustained where the complaint charged the stealing of "the goods in the schedule hereunto annexed," and no schedule was sent up with the record); Com. v. Brightbíll, 22 Pa. Dist. 367. See also as to the sufficiency of the record in this respect Com. v. Keenan, 140 Mass. 481, 5 NE 477 (complaint and judgment); Com. v. Ballou, 112 Mass. 279 (copy of warrant). [a] The sworn complaint is juris- [b] Place of offense. It has been 28. Esping v. Elizabeth S. P. C. [a] In New Jersey in a proceed- In New York (1) under Code 29. Com. v. Bisch, 145 Mass. 375, 14 NE 156 (showing as to recognizance); Com. v. Sullivan, 11 Gray (Mass.) 203; State v. Cowdon, 85 Mo. A. 403; Peo. v. McCann, 6 NYSt 541 (specification of errors in the affidavit for the appeal). In [a] Notice of appeal—(1) Idaho it has been held that the record on appeal from the justice's court in a criminal case is not required to show that defendant ever gave notice of his intention to appeal. State v. Barnard, 13 Ida. 439, 90 P 1. (2) But in a later case the court said that it was the duty of defendant's counsel to have made service in such a manner that the transcript would disclose affirmatively that the notice of appeal had been properly served. State v. Cowen, 29 Ida. 783, 162 P 674 (where, however, in a case in which the transcript did not show service on the prosecuting attorney, defendant was permitted to show by affidavit such service). (3) Under a statute providing that, where defendant appeals from a judgment in a criminal action he shall give notice of such appeal in open court, and the justice shall enter such notice on his docket, the transcript must show not only such notice, but also entry thereof. State v. Connolly, 49 Or. 406, 90 P 902; Ball v. State, 31 Tex. Cr. 214, 20 SW 363. [b] The noting on the docket of the fact that a bill of exceptions had been signed and filed not being essential to the jurisdiction of the appellate court, the failure of the justice to make the notation in his docket does not warrant the court in refusing to consider and pass upon the questions contained in the bill of exceptions. Burchard v. State, 83 Oh. St. 1, 93 NE 199. [c] Record on return to writ of certiorari.-Peo. v. Etter, 72 Mich. 175, 40 NW 241; Mullins v. Peo., 24 N. Y. 399, 23 How Pr 289; Peo. V. New York City, 2 Hill (N. Y.) 9; Gelbert v. Com., 3 LackJur (Pa.) 374; Com. v. Morey, 10 Phila. (Pa.) 460; Com. v. Brownell, 35 Pa. Super. 249. 30. Hunter v. State, 102 Ind. 428, 1 NE 361: Com. v. Gavin, 148 Mass. 449, 18 NE 675, 19 NE 554; Com. V. Bisch, 145 Mass. 375, 14 NE 156; Rex v. Boardman, (Alta.) 18 DomLR |