Opinion
No. 31793.
December 13, 1951.
CRIMINAL LAW — APPEAL — RECORD — JURISDICTIONAL STEPS — FILING STATEMENT OF FACTS — TIME LIMIT. Under Rule on Appeal 46, in order that the supreme court may secure jurisdiction of an appeal in a criminal cause, when a statement of facts is necessary to consider the questions presented it must be served and filed within ninety days after the date of entry of the judgment, with an extension of not more than thirty days if requested within the ninety-day period; and an appeal will be dismissed, where it appears that the assignments of error were based on the evidence in the case, and the statement of facts was not filed within ninety days nor was a request made for an extension of time.
Appeal from a judgment of the superior court for King county, Turner, J., entered February 27, 1950, upon a trial and conviction of robbery and attempted robbery. Appeal dismissed.
Ralph A. Horr, for appellant.
Charles O. Carroll and Edward M. Bensussen, for respondent.
Appellant was found guilty, by a jury, of the crimes of robbery and attempted robbery. Judgment and sentence was entered on February 27, 1951. Appellant did not file a statement of facts in the superior court until June 22, 1951. This was one hundred fifteen days after the entry of judgment.
[1] Rule on Appeal 46, 34A Wn.2d 50, provides that, in order that the supreme court may secure jurisdiction of an appeal in a criminal cause, when a statement of facts is necessary to consider the questions presented, the appellant must serve and file a proposed statement of facts in strict accordance with the rule. Subd. 4 of the rule requires that the proposed statement of facts be served and filed in the office of the clerk of the superior court in which the cause was tried, within ninety days after the date of entry of the judgment. This time may be extended for not more than thirty days by the superior court or by the chief justice of the supreme court, if the application for an extension is made within the ninety-day period.
Two of the errors assigned by appellant involve the sufficiency of the evidence to sustain a conviction. The other error claimed is that the trial court did not grant appellant a continuance when he claimed surprise at the testimony given by one of the other persons charged jointly with him, who was called, but not endorsed, as a witness by the state.
The statement of facts in this case was not filed within ninety days, and no request for an extension of time was made, as provided by the rule. It must be stricken. State v. Gundlach, 36 Wn.2d 918, 221 P.2d 502 (1950), and cases cited. This being done, we cannot consider the assigned errors.
The appeal is dismissed.