The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-01-27

nobis was made by welch & Welch, for
Collins, on the ground that a new trial
should be granted for the reason that
under the law they were not able to
appeal the case to the supreme court
The law at the tirne Collins was con-
victed. December "a. 1888. was that the
transcript of the evidence and bill of
exceptions should be filed with the
clerk of the supreme court before the
end of the term of the district court
where the case was tried There were
but thirteen days left in the September
term, the term in which Collins was
tried, at the expiration of the trial, ana
the evidence could not be prepared The
application for a new trial was heard
in the next term, the January term of
the court, 1899, and the attorneys for
Collins claim, and it was conceded by
the state, that during this term the
court stenographer, r. H Cav, could not
prepare the evidence in the time left
after the motion for new trial was
denied and the end of the term of court
for the reason that there was not suffi-
cient time.
In giving his decision Judge Hazen
said:
''The petitioner basis his claim to
the writ of error coram nobis upon the
ground that after the return of the YER
dict and after the overruling of the mo-
ton for a new trial there was not suffi-
cient time during the term within
which to prepare a bill of exceptions
for the purpose of appealing the case
to the supreme court. The defendant in
a criminal case has no constitutional
right of appeal He has a constitution
al right to be Informed of the natu - of
the accusation against him, to a trial
witnesses, and to meet his accuSers face
to face. These are the only constitu-
tional rights guaranteed to him. The
right of appeal is purely statutory; it
does not exist except by statute. The
legislature may circumscribe the right
of appeal with any restrictions or linn
itations it may see fit to impose. and
the person desiring to appeal must
bring himself within those restrictions
or limitations.
'At common law there was no right
of appeal in felony cases. The writ of
error coram nobiS is a common law
writ and does not exist by reason of
any statutory provision, and it has been
very much restricted in its application
by certain of our statutory provisions.
If then the right of appeal did not ex-
list at common law in felonieS and the
writ of error coram nObiS is a common
law writ we must determine whether
the ground upon which the writ is ask
ed would have been sufficient to au-
thoriZe its issuance at common law, and
since there was no right of appeal in
felony cases at common law it would
logically follow that the writ would not
issue on account of the defendant being
unable to appeal
"If the defendant has been deprived
of the right of appeal on account of the
want of time to prepare his bill of ex-
ceptions within the term, as required
by the statute it is the fault of the law
in failing to give him sufficient time
within which to make and file his bill
of exceptions. No person can be heard
to complain when it is the law alone
that deprives him of something which
he cOnceives to be his right.
THE defendant claims that he has
been denied the right to have the ques-
tions of Law in the case reviewed. The
old practice was that when an adverse
ruling was made the party Immediate
ly made objections and reduced them to
writing and the bills of exceptions were
signed at once. The time given now
for the preparing of bill of exceptions
is granted by the legislature. The de-
fendant could have presented to the
court bill of exceptions during the 13
days before the end of the term.
THE court did not overrule the mo-
tiOn for a new trial until the next term.
No questions of law were saved and the
stitutiOn guarantees him. The view the
saved at the time was whether the evil
dence justified the verdict. Our courts
have decided that writ of this kind
will not lie to review a question of fact
and the question whether the verdict
was sustained by the evidence is a ques-
ton of fact.
1.-The defendant has had granted him
every right in this case which the con-
stitution guarantees him. The view the
court entertains in this case Is that the
fendant is basing his writ entirely upon
the fact that he was unable to appeal his
case because the court stenographer