295 N.W. 666
File No. 8349.Supreme Court of South Dakota.
Opinion filed December 31, 1940.
Criminal Law.
Where the state on October 25, 1939, perfected an appeal from an order granting defendant a new trial, and thereafter stipulations were entered into by counsel extending the time within which to file and serve the state’s brief to April 21, 1940, and no further stipulation was entered into and no brief had been filed, and no further steps or proceedings had been taken in prosecution of the appeal by December 31, 1940, appeal would be deemed to have been “abandoned” and the order would be affirmed.
Appeal from Circuit Court, Minnehaha County; Hon. Lucius J. Wall, Judge.
Howard Fouts and Ralph Johnson were convicted of an offense. The trial court granted Howard Fouts a new trial, and from the order granting the new trial, the State appeals.
Appeal deemed abandoned, and order appealed from affirmed.
Leo A. Temmey, Atty. Gen., and E.D. Barron, State’s Atty., of Sioux Falls, for Appellant.
Page 569
Henry C. Mundt, of Sioux Falls, and C.I. McNutt, of Des Moines, Iowa, for Respondents.
PER CURIAM.
The defendant, Howard Fouts, was tried jointly with one Ralph Johnson, and both defendants were found guilty by a jury. Johnson appealed to this court, and his conviction was reversed. Cf. State v. Johnson et al., 67 S.D. 459, 293 N.W. 822. The trial court on the motion of Fouts granted this defendant a new trial, and the State on the 25th of October, 1939, perfected an appeal to this court from the order granting the new trial. Thereafter stipulations were entered into by counsel for appellant and respondent extending the time within which to file and serve appellant’s brief to the 21st day of April, 1940. No further stipulation has been entered into, and no brief has been filed, and no further steps or proceedings have been taken in prosecution of the appeal.
The appeal is deemed to be abandoned, and the order appealed from is affirmed.
All the Judges concur.