State v. Sparks

BROWN, J.

Defendant was convicted in the circuit court of Bollinger county on September 10, 1913, of the crime of breaking the custody of an officer, as denounced by section 4382, Revised Statutes 1909, and he appeals from a judgment fixing his punishment at imprisonment for six months in the county jail. This appeal was first granted to the Springfield Court of Appeals, but, as the offense of which defendant was convicted is a felony, the latter court transferred the appeal to this court. [State v. Underwood, 254 Mo. 469.]

What purports to be a complete transcript of the record proper and bill of exceptions was lodged with the clerk of this court on May 19, 1914. Said transcript was so incomplete that on June 30, 1914, our Attorney-G-eneral filed suggestions of diminution of record, which suggestions were by the court sustained, and the clerk of the circuit court commanded to make out, certify and transmit to this court a full and complete copy of all record entries in his office pertaining to this cause. On September 7, 1914, the clerk complied with our command.

The only material difference between the transcript thus obtained and the record entries found in the original transcript is that the one last filed shows that the jury which tried defendant was duly sworn; that defendant was accorded an allocution before sentence ; and that the motion for new trial was filed one day after the judgment of conviction had been entered. These important entries were omitted from the original transcript.

to^Record! I. On January 5, 1915 (the day on which this cause was docketed for trial in this court), the defendant, without challenging the correctness of the transcript sent up under our first order, filed his motion suggesting diminution of record and praying that the clerk of the trial court be commanded to send up a full, true and complete transcript of all record entries in this cause.

This motion was overruled, and properly so, because we had already done, at the instance of the Attorney-General, the very thing the defendant requested us to do.

Without committing ourselves to the proposition that we will not in any criminal case consider a motion filed in such untimely manner to amend or correct a record, we suggest that it would be far better practice, when a party suggests that any record, document or evidence has been omitted from the transcript, or any record entry, document or evidence has been incorrectly copied into such transcript, to file with his motion suggesting diminution true certified copies of such omitted or incorrectly copied entries, documents or evidence. When this is not done we will exercise our discretion to grant or overrule such motion as justice and the diligence of the movent may seem to demand.

New°Trfah II. The fact that the amended abstract of the record proper prepared and filed by the clerk of the circuit court at our command, shows that the motion for new trial was not filed until one day after sentence and judgment was pronounced upon defendant precludes us from reviewing any matter of error found in the bill of exceptions (if such there be). This precise point was before us and ruled upon in the recent cases of State v. Thomas, 232 Mo. 216, and State v. Briscoe, 237 Mo. 154.

When the record, as in this case, shows that the sentence was pronounced and judgment entered before the motion for new trial was filed it will be presumed, in the absence of a contrary showing, that the trial court was informed by the defendant that he did not desire to be heard on a motion for new trial.

If defendant had moved the trial court to grant him time to file a motion for new trial before entering judgment, and that request had been denied, then such ruling denying time to file a motion for new trial as well as the evidence introduced upon such motion, would became a proper matter of exception. [State v. Carson, 231 Mo. 1.]

It may sometimes occur that clerks will write up judgments against defendants before any judgment has been actually pronounced by the court; in all such cases it becomes the duty of defendant to move the court to vacate or expunge from its records such premature or unauthorized judgment before filing his motion for new trial. Otherwise, the judgment must stand as an absolute bar to the consideration of errors found only in the bill of exceptions.

“short Form.” III. Among the files in this cause is a certified copy of the judgment of the circuit court and the order-granting the appeal. This document need not have been mentioned, except to emphasize the fact that it serves no useful purpose in a criminal cause. In civil causes the filing of a certified copy of the judgment and order granting an appeal, together with the payment of the docket fee, gives the appeal its place on onr docket, but, as the statute automatically advances all criminal cases, it is useless to file in this court a fragment or fraction of the record proper. If a review only of the record proper is desired a transcript of the entire record proper should he filed. The case of State v. Short, 250 Mo. 331, in so far as it conflicts with the views expressed in this opinion, is overruled.

Record Proper. IY. We find on file in this cause an information which is legally sufficient to charge the defendant with the offense of which he was convicted. The amended transcript of the record entries filed under our former order shows that defendant waived formal arraignment, and that he was found guilty and his punishment fixed at six months in jail hy a jury duly impaneled and sworn; that he was accorded an allocution, after which sentence was duly .pronounced in accordance with the verdict of the jury. The record proper contains no reversible error and the judgment is affirmed.

Fans, P. J., and Walker, J., concur.