State v. Reed

• Decision Date: 07 June 1886
• Citation: 1 S.W. 225,89 Mo. 168
• Parties: STATE v. REED.
• Court: Missouri Supreme Court

1 S.W. 225

89 Mo. 168

STATE v. REED.

Supreme Court of Missouri.

June 7, 1886.

1. CRIMINAL LAW — APPEALS — EXCEPTIONS NOT TAKEN.

All objectionable rulings of the trial court must be excepted to at the time, and made part of the bill of exceptions, or no error can be predicated on them on appeal.

2. SAME — NEW TRIAL — MOTION FOR.

The motion for a new trial must also be made part of the bill of exceptions; otherwise, no question can be raised on appeal as to misdirecting the jury.

Appeal from Cass circuit court.

Indictment for and conviction of larceny. New trial denied, and respondent appeals.

Atty. Gen. Boone, for the State. A. Comingo and Wooldridge & Daniel, for appellant, R. S. Reed.

BLACK, J.

Reed, the appellant, and Fredericks, were jointly indicted for stealing a horse, the property of Gentry. Upon a trial in the Cass circuit court appellant was found guilty, and sentenced to two years' imprisonment in the penitentiary.

1. The evidence of McDaniel, a merchant, to the effect that he had sold Reed boots and shoes, and that the latter wore a No. 6, was properly received. Other evidence that the tracks in the dust showed that the person who led the horse from the stable wore a boot or shoe of that size made the evidence of McDaniel relevant. While the merchant was not positive, and could only speak from his best recollection, still the evidence was competent. It had some tendency to identify the defendant as the person who took the horse from the stable. State v. Babb, 76 Mo. 501. It was for the jurors to determine its value, and consider it with the other evidence.

Quaite, a witness for the state, was asked, on cross-examination, if he had not on a former occasion, and at a specified time and place, made statements, giving them in full, contradictory of his evidence on the witness stand, and he said he had not. The defendant called witnesses who testified that Quaite had made the alleged contradictory statements. The state, by way of rebuttal, recalled Quaite, and he was allowed, over the objections of the defendant, to give his version of what was said by him. The purpose of the cross-examination of the witness was to lay a foundation to impeach his credit. In all such cases the attention of the witness, as was done here, must be called to the time, place, and person involved in the contradictory statement. The object of this rule is that the witness may recollect and explain what was said, and, for the purpose of making such explanation, he may be recalled, (1 Greenl. Ev. § 462;) and for a like purpose he may be recalled by way of rebuttal, (State v. Winkley, 14 N. H. 490.)

2. The court gave five instructions, which cover every issue presented by the pleadings and the evidence. The defendant asked no other or additional instructions, and made no objection to those which were given on the trial, and for the first time complained of them in the motion for new trial. The question is therefore presented whether these instructions ought to be reviewed here. The rule is well settled in civil cases that exceptions must be saved to the ruling of the court at the time the ruling complained of is made, and that it is not sufficient to make the objection for the first time in a motion for new trial. This rule applies to instructions as well as any other matter of exception. Randolph v. Alsey, 8 Mo. 656; Dozier v. Jerman, 30 Mo. 216; Houston v. Lane, 39 Mo. 495; Waller v. Hannibal & St. J. R. Co., 83 Mo. 608. It has also repeatedly been held that the same rules apply in criminal as in civil cases as to matters of exceptions, which become a part of the record only by bill of exceptions. State v. Connell, 49 Mo. 282; State v. Marshall, 36 Mo. 400; State v. Sweeney, 68 Mo. 96; State v. Ward, 74 Mo. 256; State v. Williams, 77 Mo. 310; State v. Burnett, 81 Mo. 121. In criminal cases in this court no assignment of errors, or joinder in error, is required, and it is made the duty of this court to proceed, "and render judgment upon the record." Section 1993, Rev. St. But this section has nothing to do with the method of preserving questions in the record. Other sections of the Revised Statutes of 1879 provide that the practice in civil cases shall apply in criminal cases as to impaneling jurors, (section 1906,) and compelling the attendance of witnesses, (section 1907.) In prescribing the order of trials in criminal cases, section 1908 provides: "Fourth, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict;" and section 1921 is as follows: "On the trial of any indictment," etc., "for a criminal offense, exceptions to any decision of the court may be made in the same cases and manner provided by law in all civil cases, and bills of exceptions shall...