This court on January 17, 1939, by written opinion, held that the first appeal attempted to be taken by the defendant, Albert Earl Rosser, by *Page 308 serving and filing notice of appeal on August 23, 1938, had been abandoned by failure of the appellant to file in this court a transcript of the record in the case within 30 days after August 23 or within any extension of time granted during said 30 days; that by such failure the defendant's right to take an appeal to the supreme court had been exhausted and terminated; and that the second notice of appeal, which was served and filed October 4, 1938, was without force or effect.
The correctness of that ruling is questioned by the appellant, who has filed a petition for rehearing of the motion of the respondent, State of Oregon, to dismiss his appeal. Accompanying the petition is a motion by the appellant for the dismissal of his first appeal without prejudice and for an order permitting him to rely and stand upon his second notice of appeal.
In his brief filed with the said petition and motion the defendant presses upon us that he should not be deprived of the right to have his case determined upon its merits, in view of the fact that the second notice of appeal was served and filed within 60 days after the entry of judgment — the statutory period in which he could take an appeal — and that the entire transcript of the proceedings and evidence, together with exhibits, has been filed in the supreme court within the time allowed by law if the second appeal be determined to be valid. In view of the importance of this question careful consideration has been given to our prior ruling and to the additional arguments advanced and authorities submitted by the appellant and the respondent.
It is appropriate here to review briefly the history of the proceedings had in the circuit court relative to this appeal. Rosser was convicted in Polk county, Oregon, *Page 309 of the crime of arson, and on August 12, 1938, was sentenced to imprisonment in the Oregon state penitentiary for a term of 12 years. Thereafter, on August 23, 1938, he served and filed with the clerk of the circuit court a notice of appeal from the said judgment to the supreme court. On the same day, the trial judge signed a certificate to the effect that in his opinion there was probable cause for the appeal, and ordered stay of execution pending such appeal.
On the day that notice of appeal was given, one of the attorneys for the defendant ordered from the official court reporter a complete transcript of the evidence, testimony and proceedings in the said cause. This order was given in the presence of the district attorney and assistant district attorney of Polk county. At the time the transcript was ordered, the attorney for the defendant and the attorneys representing the state of Oregon in this proceeding were advised by the court reporter that it would be impossible for her to prepare the transcript before the first day of October and that she would probably not be able to have it completed before the fifteenth of that month. Later, on October 4, 1938, the defendant by his attorney served on the district attorney and filed with the clerk a motion for an order granting him to and including the fifteenth day of November, 1938, within which to serve and file his bill of exceptions, and extending the time to file his transcript in the supreme court to and including the twenty-fifth day of that month. Attached to this motion was the affidavit of one of the defendant's attorneys setting forth the fact that the court reporter had been unable to prepare the transcript of testimony and would probably not have the same completed before November 1, and that after receiving the transcript the said attorney *Page 310 would require 10 days in which to prepare the bill of exceptions. An order was made by the circuit court on October 4 granting the said motion, without any resistance made by the state's attorneys.
The defendant on October 4, 1938, also served and filed with the clerk of Polk county another notice of appeal from the judgment sentencing him, which notice was identical with the former notice of appeal served and filed August 23, 1938, with the exception that the first notice of appeal did not state the date in August on which the judgment was entered, which date was set forth in the second notice. There was also procured from the trial judge on October 4 another certificate of probable cause.
Immediately upon completing the transcript of testimony, on October 26, 1938, the court reporter sent it by express to the defendant's attorney in Portland, carrying charge and reporter's charge collect, the latter being $694.25. This amount was paid within a few days by the defendant's counsel and on November 14, 1938, the defendant's counsel served upon the district attorney the proposed bill of exceptions, containing 166 pages. Attached thereto was the transcript of testimony consisting of 925 pages. On the following day the circuit court entered an order granting to the attorneys representing the state of Oregon, at their request, until the thirtieth day of that month in which to object to the proposed bill of exceptions, and extending the time within which the bill of exceptions should be filed in the circuit court to and including December 5, 1938, and further granting to the defendant to and including December 15, 1938, in which to file his transcript in the supreme court. No objections were made on behalf of *Page 311 the State of Oregon to the granting of these extensions of time to the defendant.
Thereafter, under date of December 2, 1938, the proposed bill of exceptions, with numerous changes made therein apparently at the suggestion of the attorneys for the state, was approved, settled and allowed by the trial judge. The entire record in the case, including the different notices of appeal, testimony and exhibits, was filed in this court by the defendant December 9, 1938. Prior thereto, however, on November 23, the state served by mail on attorneys for the defendant, and on November 25 filed in this court, a motion to dismiss the defendant's appeal "for the reason that no transcript of said cause was filed in this court [the supreme court] either within a period of 30 days from the date of the filing of notice of appeal in said cause or within any extension of time granted within 30 days from the date of filing of said notice of appeal."
The defendant, in support of his petition and motion, directs our attention for the first time to the case of State v.Tucker, 57 Or. 59, 110 P. 392. In that case the defendant was convicted of the crime of participating in a riot. He served notice of appeal, procured a certificate of probable cause and was admitted to bail. Notice of appeal was filed November 15, 1909, but the transcript was not transmitted to this court within the statutory period, and, in the language of the court, "his attempted appeal" was "therefore void". As the law then existed, the defendant had five days after the filing of the notice of appeal within which to file the transcript in the supreme court. The defendant on July 6, 1910, moved "to dismiss the appeal without prejudice, indicating his desire to take a second appeal." *Page 312
On January 11, 1910, the defendant Tucker by his attorneys filed with the clerk of the circuit court for Wallowa county, wherein the case had been tried, a motion for an extension of time within which to file a bill of exceptions until February 21, 1910. The affidavit in support of this motion stated that the transcript of testimony was not received by defendant's attorneys until December 23, 1909, and that due to the fact that the affiant had no office help he had been unable to prepare a bill of exceptions in said cause; that he was also engaged in the circuit court for Umatilla county and was too busy in his office to prepare the bill of exceptions; and that he would be busy in court for some time to come. The transcript on appeal was filed in the supreme court May 7, 1910.
In the brief in support of the motion to dismiss the appeal in the Tucker case it was stated that the failure to file the transcript within five days after the notice of appeal had been filed was due to oversight on the part of attorneys for the appellant, "due to the fact that further time had been obtained for filing a bill of exceptions, and it was thought that the time for filing a transcript herein was thereby extended"; that the attorneys desired to assure the court that the appeal had been taken in good faith and not for the purpose of delay; and that the effort of the defendant to take a second appeal was "in good faith and not for the purpose of delay".
The record does not contain any motion or order allowing an extension of time for filing the bill of exceptions other than the motion hereinbefore mentioned. There does not appear to have been any further extension of time for preparing, serving and filing the *Page 313 bill of exceptions. The transcript was not filed until two and one-half months after the expiration of the extension of time granted by the circuit court for filing the bill of exceptions, and five and one-half months after the last day to file the transcript. At the time of Tucker's conviction, a defendant had one year within which to appeal from the circuit court to the supreme court.
In the opinion granting the defendant's motion, it was said that it had been held in this court that the "dismissal of an appeal in civil cases is a final disposition of the case, and that a second appeal can not thereafter be taken", citing numerous cases. The court then pointed out the following distinction between civil and criminal cases:
"We have also held that it is incumbent on the defendant in a criminal case to use diligence to see that his transcript is filed in this court within the time required by law, and that upon his failure to show such diligence his appeal will be dismissed. The method of taking appeals provided by the criminal code being complete within itself, the decisions in civil cases, heretofore cited, throw no light on this subject, and, as the question is a new one in this court, we shall decide it in the light of decisions of other states having statutes similar to our own.
"We find the great weight of authority is to the effect that, in the absence of some statutory provision to the contrary, the dismissal of an appeal without prejudice is not a bar to a second appeal taken within the time allowed by statute for that purpose. This rule is applied with the qualification that the first appeal has become ineffective for some technical reason, either in the method of taking it or through an honest failure to file the transcript in the appellate court within the time required by law. 2 Ency. Pl. Pl. [Pr.] 357; Evans v. State Bank,134 U.S. 330 (10 S. Ct. 493; *Page 314 33 L. Ed. 917); State v. Chastain, 104 N.C. 900 (10 S.E. 519); Roberts and Hoyt v. Tucker, 1 Wn. T. 179; Ward v. Hollins, 14 Md. 158; Kinner Butler v. Dodds, 35 Ark. 29. This seems to be the practice in most of the jurisdictions, excepting such as have statutory provisions either expressly or by implication prohibiting a second appeal.
"The motion will be allowed, therefore, and the appeal dismissed without prejudice."
In Evans v. State National Bank, 134 U.S. 330, 33 L. Ed. 917,10 S. Ct. 493, cited with approval in State v. Tucker, supra, an order was entered allowing Mrs. Evans and her husband to appeal to the supreme court of the United States, and on the same day a bond was filed and approved by the court. "Nothing further was done, and the record not having been filed in this court during the succeeding term, the appeal became of no avail, because not duly prosecuted." Thereafter Mr. and Mrs. Evans again petitioned the circuit court to allow an appeal from the decree to the supreme court. Bond was given and the record was filed in the supreme court during the term. A motion was thereupon made to dismiss the appeal "upon the grounds that it could not be granted, because the court had exhausted its power by the allowance of the first appeal, and because, if this were not so, the second appeal was not taken within two years from the entry of the decree." In passing upon this motion the court said:
"As to the first of these grounds it may be remarked, that when the term elapsed at which the first appeal was returnable, without the filing of the record, that appeal had spent its force, and the matter was open to the taking of a second appeal, as it would have been if the appellee had docketed the cause and had it dismissed." *Page 315
The court then stated that the appeal had been taken within the required two years, and refused to dismiss the second appeal.
Kinner Butler v. Dodds, 35 Ark. 29, is another case given as authority in State v. Tucker, supra. Instead of referring particularly to that case we direct attention to a later decision of the supreme court of Arkansas in Robinson v. Arkansas Loan Trust Co., 72 Ark. 475, 81 S.W. 609, wherein the court stated:
"The statutes of this state require appeals to this court to be taken within one year after the decree or judgment appealed from was rendered. What is an appeal? `The word, when accurately used in law matters, means the removal of a suit in equity or of an action at law, from an inferior to a superior court.' Elliott on Appellate Procedure, § 15. When the appeal is granted and an authenticated copy of the record is filed in the superior court, the suit or action is thereby removed. The filing of the copy of the record is necessary, because it is the source from which the appellate tribunal obtains its knowledge of the facts in the case and of the questions upon which it is its duty to pronounce judgment. When it is filed, the appellate court's jurisdiction of the subject-matter is complete, and the cause is removed."
In that case there was a motion to dismiss a second appeal. In ruling upon that motion the court called attention to one of its early decisions and quoted with approval from the opinion therein as follows:
"A party who has taken an appeal without superseders, and failed to perfect it within the time required by law, may take another appeal at any time within the period during which appeals are allowed. In such cases it is the better, but not the necessary, practice, to have the first appeal docketed and dismissed before taking a second appeal." *Page 316
The court then quotes from two other former decisions, one of them Kinner Butler v. Dodds, supra, to this effect:
"A party who has taken an appeal with supersedeas, and failed to prosecute it, must docket the appeal here, and dismiss it, before he can take a second appeal."
It will thus be seen that the early Arkansas decisions made a distinction between appeals with supersedeas and appeals without supersedeas, with reference to the necessity of taking an order granting the dismissal of a first appeal before taking a second. In passing upon what might at first glance appear to be a diversity of rulings in former decisions, the court in the case now under review goes on to say:
"We see no good reason why it should be necessary to dismiss an appeal with supersedeas before another can be granted in the time prescribed by law, when it is not necessary to dismiss an appeal without supersedeas before another can be taken, unless, in the first case, it is necessary in order to enable the appellee to pursue his remedies against the sureties on the appeal bond. While it is the better practice to dismiss the appeal with supersedeas before another is taken, the same result can be obtained by dismissing the first after the second is granted. In that case the appellee can enforce his remedies on the appeal bond. It would be a needless ceremony to docket the appeal with supersedeas here, and dismiss it and the second appeal, when two appeals are pending, and then take the third appeal, when the same object can be accomplished by dismissing the first."
In Porter v. State, 146 Ala. 36, 41 So. 421, the defendant was convicted of murder in the second degree and his first attempted appeal was dismissed because of the failure of the transcript to show the judgment of the circuit court. Thereupon a second appeal was *Page 317 taken and it was sought to dismiss that appeal on the ground "that the dismissal of the appeal was conclusive against the right of the appellant to prosecute this second appeal to this court." In denying the motion to dismiss, the court said:
"While there are some authorities to the effect that when an appeal has been dismissed the party can not take a second appeal, in most of those cases the facts were that the appellant himself voluntarily dismissed his appeal. Without subscribing to the correctness of those cases, even to that extent, we think that the great weight of authority, which we think, also, is in consonance with the analogies of the law, sustains the proposition that where the merits of the case are not passed upon, and the case was dismissed on account of the failure of some technical requirement, the party may prosecute a second appeal within the time prescribed by law": citing numerous authorities.
In the case of Groendyke v. Musgrave, 123 Iowa 535,99 N.W. 144, the question involved was, as stated by the court: "May an appellant voluntarily dismiss an appeal once perfected, and thereafter, and within six months from the date of the judgment sought to be reviewed, take a second appeal?" After stating that the court answered that question in the affirmative, the opinion thus continues:
"There would seem to be no good reason for denying such right, and, as we shall see, the practice finds much support in decisions of the courts. The statute allows a party six months to take an appeal. Experience has demonstrated that lawyers are not wholly exempt from liability to mistakes, and if, having attempted to effect an appeal, counsel find that by some error or oversight their appeal is likely to be lost without a hearing upon its merits, and the statutory limitation has not yet run, why should they not be allowed to take advantage of this locuspoenitentiae to dismiss the ineffectual appeal and begin anew? By analogy with the right freely *Page 318 exercised to dismiss an original action and to renew the same, it would seem that such practice is entirely legitimate."
The court then cites cases from 14 different states and the United States supreme court, including in the list of authoritiesEvans v. State National Bank, supra, in support of its decision. Many of the cases permit a second appeal prior to the dismissal of the first appeal.
In Martinez v. Gallardo, 5 Cal. 155, an attempt was made to dismiss a second appeal on the ground that one appeal had already been dismissed for failure to give a proper bond, and that the appellant had lost his right to a second appeal. In deciding this question the court said:
"We are not disposed to consider the right lost, in consequence of some mere technical or clerical mistake.
"There has been no final judgment rendered in this court, and until such judgment, an appeal ought to be entertained at any time within the period allowed by law.
"No inconvenience can result from such a rule, as the appellant is responsible in damages if this appeal be frivolous or prosecuted for delay."
It appears, however, that a statute of California was enacted subsequent to that decision, providing that the dismissal of an appeal is in effect an affirmance of judgment, unless the dismissal is expressly made without prejudice to another appeal:Spinetti v. Brignardello, 54 Cal. 521.
In Weeks v. Madler, 20 Kan. 57, Mr. Justice Brewer, later an associate justice of the supreme court of the United States, made the following observation:
"The dismissal of one petition in error, on the ground that the record attached to it is illegal and *Page 319 insufficient, is no bar to a subsequent action based upon a legal and sufficient record. There has been no adjudication upon the merits, no inquiry into the alleged errors. The record has not heretofore been so presented that we could examine it."
"The correct rule, in our judgment," said the supreme court of Florida in Harris v. Ferris, 18 Fla. 81, "is that where an appeal is dismissed for irregularity, or for want of prosecution, the merits of the cause not having been determined by the appellate court, a writ of error or a second appeal may be allowed, if not prosecuted in bad faith, within the time limited by law." To the same effect as the foregoing decisions, see also:Marshall v. The Milwaukee St. Paul Railroad Company,20 Wis. 644; Garrick v. Chamberlain, 97 Ill. 620; Beller v. Stevens,40 Mich. 168; Sanders v. Moore, 52 Ark. 376, 12 S.W. 783;Cooper v. The Pacific Mutual Life Insurance Company, 7 Nev. 116, 8 Am. Rep. 705; Collins v. Gladiator Consolidated GoldMining Milling Co., 19 S.D. 358, 103 N.W. 385; Orth v.Basker, 30 Haw. 429.
The question of the effect of abandonment of an appeal as barring a subsequent appeal is discussed in the following language in 4 C.J.S., "Appeal and Error", § 34, subdivision b, paragraph 1:
"The general rule is that, if a proceeding for review has been dismissed without a decision on the merits of the case, it does not bar seasonable prosecution of another appeal or proceeding in error. Application of this rule may, however, be modified or precluded, where there is a rule of court making the dismissal of an appeal final and a bar to any other appeal unless the appeal was restored after such dismissal, or a statute requiring that the dismissal of the first proceeding be expressly made without prejudice to another proceeding, *Page 320 or the dismissal of an appellate proceeding operates as an affirmance of the judgment appealed from, or leave of court is essential to the prosecution of a second proceeding, or an appeal has been dismissed by agreement for reasons other than the failure to perfect the appeal * * *"
In the same section, in subdivision c, we read:
"As a general rule, where an attempted appellate proceeding has been abandoned, and the time for taking an appeal or suing out a writ of error has not expired, another appeal or writ of error may be prosecuted."
We shall now ascertain whether there is any provision in the code of criminal procedure relating to the method of prosecuting an appeal from the circuit court to the supreme court which either expressly or by implication denies the defendant the right to take a second appeal within the period limited by statute, when the supreme court has never acquired jurisdiction of the cause, due to the failure of the clerk of the circuit court to file a transcript in the supreme court within the time required by law. In considering this matter we must bear in mind, as pointed out in State v. Tucker, supra, that the provisions of the criminal code for taking an appeal are complete within themselves and that the decisions in civil cases in this state "throw no light on this subject". See also, in this connection:State v. Ellis, 3 Or. 497; State v. Bovee, 11 Or. 57,4 P. 520; State v. Berger, 51 Or. 166, 94 P. 181, 16 L.R.A. (N.S.) 660; and State v. Archerd, 144 Or. 309, 24 P.2d 5. In Statev. Bovee, supra, it is said that "the provisions of section 531 of the civil code [now § 7-507, Oregon Code 1930, relating to appeals in civil cases] do not affect appeals in criminal cases." *Page 321
Turning now to the sections of the code of criminal procedure relating to appeals, we find that with the exception of § 13-1205, Oregon Code 1930, not here material, they have not been amended in any respect since the code was enacted in 1864, except with reference to the time when an appeal may be taken (§ 13-1208, Oregon Code 1930) and the time in which to file the transcript with the clerk of the supreme court (§ 13-1220, Oregon Code 1930). Section 13-1220 is as follows:
"Upon appeal being taken, the clerk of the court where the notice of appeal is filed, must within 30 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."
The next two sections of the code provide as follows:
"If the appeal be irregular in a substantial particular, but not otherwise, the appellate court may, on motion of the respondent and notice to the defendant, order it to be dismissed." — § 13-1221.
"The appellate court may also, upon like motion and notice, order the appeal to be dismissed if the return be not made as provided in section 13-1220, unless for good cause it retain the appeal, and require the clerk of the court below to make a further return as to any matter affecting the merits, which appears or is alleged to be omitted from the transcript." — § 13-1222.
There is nothing in the sections hereinabove quoted, or in any part of the criminal code, which expressly denies to a defendant in a criminal case the right seasonably to give a second notice of appeal to the supreme court in those instances in which the supreme court has not acquired jurisdiction of the cause through a prior attempted appeal, due to the failure to file in this court, within the time provided by law, the required *Page 322 transcript. There is no express provision contained in the criminal code which makes the dismissal of an ineffectual appeal final and a bar to another appeal; nor is there any provision therein which bars a second appeal unless the dismissal of the first proceeding is expressly made without prejudice, or which makes such dismissal operate as an affirmance of the judgment from which the appeal was taken. Nor can it be said that the provisions of the code of criminal procedure relating to appeal impliedly deny to a defendant the right, if seasonably exercised, to take a second appeal in instances in which the supreme court has not acquired jurisdiction to hear and determine the cause on its merits by virtue of a prior attempted appeal. Sections 13-1221 and 13-1222, supra, merely provide for the dismissal of an appeal in certain contingencies. They do not provide for the affirmance of the judgment appealed from, in the event that an attempted appeal is abandoned.
State v. Keeney, 81 Or. 478, 159 P. 1165, is relied upon by the state as authority for its assertion that because the defendant perfected his first appeal and failed to file a transcript in this court within the time provided by law, his right of appeal thereby became exhausted, and no further appeal was open to him. In that case the motion to dismiss was directed against a third attempted appeal. The scope of the affidavits, both in support of the motion and contra, was practically limited to the stipulations and understandings had between the district attorney and the attorneys representing the defendant. No briefs were filed.
The decision of this court therein, holding that the defendant in a criminal case could not take a second or subsequent appeal after having perfected his first *Page 323 appeal, is founded entirely on adjudications relating to appeals in civil cases. The first case cited in support of the conclusion therein reached by the court is Schmeer v. Schmeer, 16 Or. 243,17 P. 864, and the only authority cited in that case is Brill v.Meek, 20 Mo. 358. In the latter case the opinion of the Missouri court is very brief and reads as follows:
"When an appeal has once been granted, the power over the subject is functus officio and can not be exercised a second time. This has been the uniform practice. After a party, from any cause, has lost the benefit of his appeal, he is driven to his writ of error."
In the later case of Schnaider's Brewing Co. v. Levvie,41 Mo. App. 584, it is pointed out that the statute of Missouri provides that if the appeal be not perfected in the manner and within the time prescribed, the appellate court shall, upon the filing of the record therein, affirm the judgment appealed from, unless good cause to the contrary be shown. The court there observed that the statement in the opinion in Brill v. Meek, supra, concerning the appellant's being driven to his writ of error on loss of appeal "from any cause" went beyond the scope of the question there involved and was therefore dictum, and further, that it would be inconsistent to grant a writ of error after a judgment on appeal had been affirmed due to abandonment of the appeal.
There is, however, sound reason for the rule that under the code of civil procedure of the state of Oregon when an appeal has been perfected and then abandoned by failure to file the transcript in the supreme court within the statutory period, no second or further appeal is permissible. Section 7-507, Oregon Code 1930, sets forth the procedure relating to appeals in civil matters. This section requires that the appellant shall, within a *Page 324 certain period, file with the appellate court his transcript on appeal. Subdivision 2 of the section provides that if the transcript is not filed with the clerk of the appellate court within the time provided, "the appeal shall be deemed abandoned, and the effect thereof terminated." And subdivision 3 of this section is as follows:
"If the appeal be abandoned as provided in subdivision 2 of this section, thereupon the judgment or decree, so far as it is for the recovery of money, may, by the appellate court, be enforced against the sureties in the undertaking for a stay of proceedings, as if they were parties to such judgment or decree."
It has been the uniform holding of this court, based largely on the wording of the statute above referred to, that when an appeal has been abandoned in a civil case the respondent may, upon motion, have the appeal dismissed and the judgment appealed from affirmed. In fact, the recovery could not well be ordered against the sureties in the undertaking on appeal, without affirmance of the judgment against the appellant. On the other hand, in appeals in criminal cases no bond is required of the defendant, and the only result of failure to file the transcript in time, as far as the statute relating to criminal appeals is concerned, is the dismissal of the appeal.
The decision in State v. Keeney is apparently in conflict with the holding in State v. Tucker, supra, which latter case is not therein mentioned, nor is the fact therein noted, as in the Tucker case, that the method of taking appeals provided by the criminal code is complete within itself and therefore the decisions of this court in civil cases throw no light on the subject of appeals in criminal cases. It would seem inconsistent *Page 325 to hold that when an appeal has been abandoned through failure to file a transcript in the supreme court within the time prescribed, the appellant has exhausted his right of appeal, and yet to have held, as in the Tucker case, that the court could revive and grant to the appellant the right to a second appeal merely through the process of filing with the appellate court the transcript in the abandoned appeal and having it dismissed without prejudice.
State v. Keeney, supra, appears to be the only criminal case in the Oregon reports holding that the right to appeal has been exhausted by failure to file the transcript in the appellate court within the time allowed and that a second appeal can not thereafter be taken. The question of the right to take a second appeal was not involved in the following cases, most of which were referred to in our former opinion: State ex rel. v. Estes,34 Or. 196, 51 P. 77; State v. Williams, 55 Or. 143,105 P. 716; State v. Dickerson, 55 Or. 390, 106 P. 790; State v.Douglas, 56 Or. 20, 107 P. 957; State v. Webb, 59 Or. 235,117 P. 272; State v. Morgan, 65 Or. 314, 132 P. 957; State v.Keeney, 82 Or. 400, 161 P. 701; State v. Foster, 140 Or. 200,13 P.2d 609; State v. Fehl, 147 Or. 290, 32 P.2d 1013. In fact, State ex rel. v. Estes, supra, was not a criminal case and was not concerned with the construction of any provision of the code of criminal procedure. In the other cases cited in this paragraph there was, however, involved the dismissal of the appeal on the ground that the transcript had not been filed with the clerk of the appellate court within the time provided by law. In all those cases the appeal was dismissed for the reason, as stated by the court, that it did not appear from the showing made by the defendant that the failure of the clerk to file *Page 326 the transcript was not in any way due to the defendant's negligence. The rule therein enunciated might well be followed in this instance, if we were concerned with only one notice of appeal, followed by failure of the appeal through omission to file the transcript within the required time.
Although the motion in the Tucker case pertained only to the dismissal of the abandoned appeal without prejudice, some of the authorities cited by this court in allowing the motion distinctly held that it was not necessary to procure an order dismissing an abandoned appeal before prosecuting a second appeal. As we have hereinbefore pointed out, the supreme court of the United States, in Evans v. State National Bank, supra, held that because the record had not been filed within the term, "that appeal had spent its force, and the matter was open to the taking of a second appeal, as it would have been if the appellee had docketed the cause and had it dismissed." None of the authorities cited in the Tucker case, with the exception of Kinner Butler v. Dodds, supra, held that it was necessary to dismiss the first appeal before taking a second; and the Arkansas court, which rendered the opinion in that case, later held, as may be noted in the excerpt above quoted from Robinson v. Arkansas Loan TrustCompany, supra, that, "It would be a needless ceremony to docket the appeal with supersedeas here, and dismiss it and the second appeal, when two appeals are pending, and then take the third appeal, when the same object can be accomplished by dismissing the first."
It is clearly in consonance with the wording and spirit of the statute relating to appeals in criminal cases that a defendant who has, in good faith and not for the purpose of delay, attempted to appeal to this *Page 327 court and failed through some technical error, such as omission to file the transcript (2 Enc. Pl. Pr. 357), to confer jurisdiction upon the court to hear his cause, be not denied the right, if seasonably exercised, to take a second appeal. Such is the effect to be given the decision in State v. Tucker, supra, which ruling we find to be amply supported by the textbooks and the decisions of other jurisdictions. It does not appear to be necessary to procure an order of this court dismissing without prejudice an abandoned appeal in a criminal case, before taking a second appeal.
In the instant case the defendant was doing everything in his power to procure a transcript of the testimony at the earliest possible moment. The attorneys for the state knew that the transcript of testimony could not be completed by the court reporter until more than thirty days after the original notice of appeal was filed. They knew or should have known that when extensions of time were obtained by the defendant to prepare and present a bill of exceptions the thirty days next following the original notice of appeal — within which to file the transcript — had expired and no extension thereof had been granted, nevertheless they did not object to the extension of time or to the incurrence of a very considerable expense by the defendant in having the shorthand notes of the reporter extended; and they even requested additional time in which to file objections to the proposed bill of exceptions.
In criminal cases, execution of the judgment of conviction is not stayed during the pendency of an appeal, unless the defendant procures "a certificate of the judge of the court in which the conviction was had, or of a judge of the supreme court, that in his opinion there is probable cause for the appeal": § 13-1216, *Page 328 Oregon Code 1930. Whether "there is probable cause for the appeal is a matter of judicial discretion and depends upon the opinion of the trial judge" or the judge of the supreme court to whom application is made, "after considering all the questions which were involved upon the trial of the action": State ex rel. v.Ellis, 156 Or. 83, 66 P.2d 995. An attempt to take successive appeals in a criminal case for the purpose of delay is altogether improbable, for the reason that the execution will not be stayed unless a certificate of probable cause be procured, and such certificate will not be issued unless the appeal is being prosecuted diligently and in good faith. In the present instance the circuit judge who heard all the evidence in the case issued a certificate upon the filing of the original notice, of appeal and again upon the filing of the second notice, indicating that in his opinion there was probable cause for an appeal.
Inasmuch as the second notice of appeal was seasonably given and the transcript was lodged in the supreme court within the time required by law, this court acquired jurisdiction of the subject matter. The cause therefore is before this court for consideration and decision on the merits.
Prior to the rendering of the former opinion in this case the transcript of both the original and the second appeal, together with the bill of exceptions, transcript of testimony and exhibits in the case, had been filed with the clerk of the supreme court, and therefore no good purpose would be served by entering an order dismissing the first appeal, since it has already "spent its force" and in any event is "of no avail because not duly prosecuted"; and for the further reason that the mandate which will issue from this court upon the *Page 329 final determination of the cause will show the entire disposition of all the matters herein made by this court.
Our former order dismissing the appeal is hereby set aside and vacated, and the appeal is reinstated.
ROSSMAN, BELT and BEAN, JJ., concur.
LUSK, J., not participating.