State v. Kimmons , 124 Mo. App. 498 ( 1907 )

BLAND, P. J.

Tbe grand jury, at tbe November, 1903, term, of tbe Greene County Criminal Court, returned a good and sufficient indictment against tbe defendant, charging, in substance, that be, as a druggist and proprietor of a drugstore, at tbe county of Greene on October 1, 1903, did unlawfully sell to one Homer Rose, intoxicating liquor in less quantity than four gallons, without a prescription and not to be used for sacramental, mechanical or scientific purposes. Defendant pleaded “not guilty” to tbe indictment, and by agreement of both parties tbe issues were submitted to tbe court, sitting as a jury, who, after hearing the evidence, found defendant guilty and assessed his punishment at a fine of one hundred dollars.

The filing of a motion for new trial is a prerequisite to a review, by an appellate court, of any error committed by the trial court, which error does not appear on the face of the record. [Taylor v. Brotherhood of Railway Trainmen, 106 Mo. App. 212, 80 S. W. 306; Strauss v. St. Louis Transit Co., 102 Mo. App. 644, 77 S. W. 156.] And it is a well-settled rule of appellate practice, that the filing of a motion for a new trial must be shown by the record proper, and a mere recital of its filing in the bill of exceptions is insufficient to show that it was filed. [Turney v. Ewins, 97 Mo. App. 620, 71 S. W. 543; Hayes v. Continental Casualty Co., 98 Mo. App. 409, 72 S. W. 135; Lapsley v. Bank, 105 Mo. App. 98, 78 S. W. 1095.] It is recited in the bill of exceptions, that the motion for new trial was filed, but no recital or entry of that fact is found in the record proper, therefore, there is nothing before us for review but the record proper. As we have said, the indictment is in legal form, it is a model, and all the proceedings shown by the record are regular and in proper form.

The judgment is affirmed:

All concur.