State v. Dowell , 90 Ohio Law. Abs. 168 ( 1962 )

Per Curiam.

A motion for leave to appeal has been filed in this court by Lovaneous Dowell, defendant-appellant herein, who is serving a life sentence in the Ohio Penitentiary for murder in the first degree. Dowell was indicted for murder in the first degree by the Grand Jury of Franklin County, Ohio, in connection with the death of Clara Gwynn on July 4,1956.

The jury, which tried Dowell, found him guilty of murder in the first degree, but recommended mercy, and on January 12, 1957, he was sentenced, as above indicated, a motion for a new trial having been overruled.

It was on June 7,1961, nearly four and one-half years after his sentence, Dowell filed this motion for leave to appeal accompanied by a notice of appeal, proof of service and a brief and assignment of errors.

Dowell assigns eleven alleged errors relating to the investigation by the Sheriff, irregularity in the action of the grand jury, insufficiency of evidence presented to the trial jury, and alleged erroneous and prejudicial instructions to the jury by the trial court.

On March 8, 1962, the Prosecuting Attorney of Franklin County, counsel for appellee, filed a motion to dismiss the appeal for failure of Dowell “to file his bill of exceptions, assignments of error, briefs or trial briefs ’ ’ as required by Paragraph D, Section 1 of Eule VII of the Eules of the Court of Appeals of Ohio.

We have examined the papers filed by appellant with care. The first question to be considered relates to the motion for leave to appeal, and we do not regard a bill of exceptions as indispensable in passing on such a motion, and therefore the motion by counsel for appellee must be overruled.

With respect to appellant’s motion for leave to appeal, it too must be denied and the proceeding dismissed. We find no sufficient reason advanced for an appeal at this time which, as indicated above, is nearly four and one-half years after the date of sentence.

The motion for leave to appeal is denied. See also State v. Dowell, case No. 5894, Tenth District Court of Appeals, in which a previous motion to dismiss appeal was sustained August 8, 1958.

Dueeey, P. J., and Bryant, J., concur. Durey, J., not participating.