State v. Walker , 309 Mo. 103 ( 1925 )

The defendant was convicted of statutory rape and his punishment assessed by the court at confinement in the Missouri Reformatory for a term of two years.

The information was filed July 5, 1923. An amended information was filed charging in substance that the defendant, on or about January ____, 1922, being then and there a person over the age of seventeen years, made an assault upon one Ella Fay Elrod, being then and there an unmarried female of previously chaste character and between the ages of fifteen and eighteen years of age, to-wit, of the age of sixteen years, and her the said Ella Fay Elrod, he the said Randel Walker did then and there unlawfully and feloniously have carnal knowledge of and abuse, etc. On a trial the jury returned the following verdict: "We the jury find the defendant guilty as charged in the information."

Section 3248, Revised Statutes 1919, as amended, Laws 1921, p. 284a, reads:

"If any person over the age of sixteen years shall have carnal knowledge of any unmarried female, of previously chaste character, between the age of sixteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month or more than six months, or by both such fine and imprisonment, in the discretion of the court."

I. The purpose of amending Section 3248, Revised Statutes 1919, by reducing the age of the male from seventeen years to sixteen years is not indicated in the title as required by Section 34 of Article IV of our Constitution. This change is probablyAge of an error or misprint. The word "sixteen" where italicizedMale. must be disregarded and in lien thereof we must read "seventeen" as the minimum age of the male. The only amendment to this section indicated in the title is as to the minimum age of the female.

II. The amended information sufficiently charges an offense under the section as amended. It charges that the defendant was over the age of seventeen and that the prosecutrix was an unmarried female of previouslyInformation. chaste character between the ages of fifteen and eighteen years, to-wit, of the age of sixteen years.

III. The record proper shows that on July 11, 1923, the cause was tried, the verdict returned, the court assessed the punishment at two years' confinement in the State Reformatory at Boonville, Missouri, and, after granting allocution,Motions: the court pronounced sentence upon the defendant.Filed After The record further shows that thereafter on the sameJudgment. day the defendant filed motions for a new trial and in arrest of judgment, which were overruled. The bill of exceptions, however, recites that these motions were filed before sentence was pronounced.

It has been uniformly held that the record proper must show the filing of motions for new trial, bill of exceptions and the like, and that such matters cannot be shown by recitals in the bills of exceptions. [Page Woven Wire Fence Co. v. Brooks,126 Mo. App. 495, 104 S.W. 482; St. Charles ex rel. v. Deemar, 174 Mo. 122, 73 S.W. 469; Wallace v. Libby, 231 Mo. 341, 343, 132 S.W. 665; 4 C.J. 59.] The record proper expressly recites that after the verdict was returned the court informed the defendant that he had been found guilty by the jury as charged in the information and that the court had assessed his punishment at two years in the State Reformatory at Boonville, Missouri, and, being asked if he had any legal cause to show why judgment should not be entered against him and still failing to show such cause, it is therefore ordered and adjudged by the court, etc. The record then recites that thereafter, on the same day, the motions were filed and overruled as above stated.

The office of the bill of exceptions in this instance was to preserve exceptions to the rulings of the court on the motions — not to show that they were filed. We are therefore constrained to hold that the motion for new trial was filed after full opportunity had been granted to the defendant to show cause why judgment should not be entered against him, and that, in default of such showing, judgment had been regularly entered.

Section 4079, Revised Statutes 1919, provides that the motion for a new trial must be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue. We have held that the statute is mandatory and that where judgment is rendered on the day the verdict is returned, without objection or exception being interposed, neither a motion for a new trial filed thereafter within four days after verdict nor the bill of exceptions can be considered on appeal, and if no error appears on the face of the record proper the judgment must be affirmed. [State v. Kile,231 Mo. 59, 132 S.W. 230; State v. Standley, 232 Mo. 23, 25, 132 S.W. 1122; State v. Whalen, 297 Mo. 241, 246, 248 S.W. 931; Kelley's Crim. Law, sec. 429.]

The defendant having been granted allocution and having failed to ask leave to file a motion for new trial, must be deemed to have waived it. [State v. Taylor, 256 S.W. (Mo.) 1059, 1062; State v. Pritchett, 219 Mo. 696, 119 S.W. 386.] It is the duty of counsel to see that proper record entries are made. [State v. Keller, 263 S.W. (Mo.) 171 (3).]

IV. The jury found the defendant guilty as charged in the information, but did not assess or declare the punishment by their verdict. In such case it was the duty of thePunishment. court to assess and declare the punishment. [Sec. 4047, R.S. 1919; State v. Emery, 76 Mo. 348; State v. Rollins, 226 Mo. 524, 126 S.W. 478.]

As heretofore stated, the record shows that the court assessed the defendant's punishment at two years in the State Reformatory at Boonville. Section 12426, Revised Statutes 1919, provides,inter alia: Any court having criminal jurisdiction, in which any male person, between seventeen and thirty years of age, shall,Commutation. upon a plea of guilty, or by the verdict of a jury, be convicted of a felony and his punishment assessed at imprisonment in the penitentiary, may, in its discretion, at the same term of court at which such plea of guilty is entered or conviction occurs, and before such person is transferred to the penitentiary, commute the punishment to confinement in the Missouri Reformatory for such term as the court may deem proper, but not for a longer time than that fixed in the sentence to the penitentiary; but such court shall first ascertain and determine that said conviction or plea of guilty is for the first offense and that the previous conduct, habits and associations of the person so convicted warrant such commutation.

This section authorizes the court in its discretion and within the limitations prescribed to commute the term of punishment in the penitentiary assessed by the verdict of the jury, to confinement in the reformatory. The conditions did not exist which authorized the court to change the punishment to a lesser one; the jury did not assess the punishment at imprisonment in the penitentiary, nor does it appear the conviction was for a first offense, etc. The purpose of the act establishing the reformatory was to segregate youthful offenders and free them from association with habitual criminals. This may be a casusomissus, but ita lex scripta est. For the reason assigned the judgment must be reversed and the cause remanded with directions to the trial court to cause the defendant to be brought into court, assess his punishment and proceed in accordance with the statute. [State v. Gordon, 153 Mo. 576, 55 S.W. 76; State v. Person, 234 Mo. 262, 268, 136 S.W. 296.]

It is so ordered. Railey, C., concurs.