State v. White , 315 Mo. 1276 ( 1926 )

On February 25, 1924, the Prosecuting Attorney of Stoddard County filed in the circuit court of said county a verified information, which, without caption and jurat, reads as follows:

"Comes now C.A. Powell, Prosecuting Attorney within and for Stoddard County, Missouri, and upon his oath of office, upon his information and belief, informs the court and charges that at and in Stoddard County, Missouri, on or about the 18th day of November, 1923, William White, in and upon one Velma Jackson unlawfully and feloniously, did make an assault with intent her, the said Velma Jackson, then and there unlawfully, forcibly, and against her will, feloniously to ravish and carnally know; against the peace and dignity of the State."

The appellant, in his brief on file in this court (pages one and two), alleges: That the cause originated in Stoddard County, Missouri; that a change of venue was granted him and the cause sent to the Circuit Court of Mississippi County, Missouri, where it was tried before Judge KELLY and a jury; that defendant was charged in the information with assault with intent to rape; that the verdict was adverse to defendant and he was sentenced, in accordance with the verdict, to pay a fine of one hundred dollars, and to be incarcerated in the county jail for three months; that from the above conviction and sentence, the defendant has prosecuted his appeal to this court.

It is conceded by respondent that the foregoing facts are true and, hence, in the disposition of the case they will be taken as true. [State v. Asher, 246 S.W. 914; State v. Ray, 225 S.W. 974.]

Other matters, presented in the case, will be considered in the opinion.

I. The information heretofore set out is sufficient as to both form and substance. [Sec. 3263, R.S. 1919; State v.Information. Neal. 178 Mo. l.c. 69; State v. Payne, 194 Mo. l.c. 443-4; State v. Comer, 296 Mo. l.c. 7,247 S.W. 179.]

II. Appellant assigns as error the action of the trial court in overruling his application for a continuance.

The record proper shows the filing of such an application, and the overruling of same. In order to review the action of the court in overruling said application, it would have to appear, from the record proper, that a bill of exceptions had been legally filed in the court below containing theContinuance. application for a continuance, the ruling of the court thereon and an exception to the action of the court in overruling said application. [State v. Baugh, 217 S.W. l.c. 280, and numerous cases cited; State v. Dickey, 231 S.W. 584; Kline Cloak Coat Co. v. Morris, 240 S.W. 100; State v. Langford, 240 S.W. 168; State v. Barker, 242 S.W. 410; State v. Sanders, 252 S.W. 634; State v. Smith, 256 S.W. 1027; State v. Sadowski, 256 S.W. 755.]

As shown by the record proper, the judgment was rendered and sentence pronounced in this case on August 1, 1924. On August 5, 1925, there was filed in this court a bill of exceptions purporting to have been signed by Judge FRANK KELLY, who tried the case. It contains no certificate of the circuit clerk as to its genuineness, correctness or authenticity. The original transcript of the record proper does not show that any bill of exceptions was ever filed in the case. On October 15, 1925, counsel for appellant filed in this court, as part of their suggestions in opposition to the State's motion to dismiss the appeal, an "Exhibit D," which is a certificate of the Circuit Clerk of Mississippi County, to the effect, that a bill of exceptions was filed in this cause on July 28, 1925, as shown by the record of said circuit court. The above certificate does not show that the bill of exceptions on file here is the one mentioned therein, nor does it refer to the bill here, or certify that it is a true copy of the one alleged to have been filed.

Section 4102, Revised Statutes 1919, as amended by the Laws of 1925, page 199, provides that: "When any appeal shall be taken or writ of error issued, which shall operate as a stay of proceedings it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause including the bill of exceptions, judgment and sentence, and certify and transmit same to the office of the clerk of the proper appellate court without delay," etc.

Section 4103, Revised Statutes 1919, provides that: "When the appeal or writ of error does not operate as a stay of proceedings, such transcript shall be made out, certified and returned, on the application of the appellant or plaintiff in error, as in civil cases, except that the costs of the transcript shall not be required in advance."

The law does not authorize the circuit clerk to send to the appellate court the original bill of exceptions, and if he did so he would be in contempt of the trial court for so doing. The bill of exceptions in this case does not prove itself, and, in the absence of a certificate of the circuit clerk as to its authenticity and correctness, we are precluded from considering same in passing upon the merits of the case. [State v. Brown,279 S.W. 98; State v. Keyger, 253 S.W. 364; State v. Little, 248 S.W. 926; Bower v. Daniel, 198 Mo. 317; St. Charles ex rel. v. Deemar,174 Mo. 122; Butler County v. Graddy, 152 Mo. 441; Ricketts v. Hart, 150 Mo. 64; Lawson v. Mills, 150 Mo. 428; Western S. W. Co. v. Glasner, 150 Mo. 426; Walser v. Wear, 128 Mo. 652; Pope v. Thomson, 66 Mo. 661; McGrew v. Foster, 66 Mo. 30.]

With the bill of exceptions eliminated from our consideration, it becomes our duty to examine the record proper in order to determine whether error exists therein. [State v. Keller, 263 S.W. 172; State v. Keyger, 253 S.W. 363; State v. Whalen,297 Mo. 241, 248 S.W. 932; State v. Little, 248 S.W. 926-7; State v. Baird, 297 Mo. 219, 248 S.W. 596; State v. Smith, 284 Mo. 175, 223 S.W. 751.]

The information is sufficient as to both form and substance, as heretofore stated. There being no error in the record proper, of which defendant can legally complain, the judgment below is accordingly affirmed. Higbee, C., concurs.