12 S.W. 358 (Mo. 1889), The State v. Griffin

Citation:12 S.W. 358, 98 Mo. 672
Opinion Judge:Sherwood, J.
Party Name:The State v. Griffin, Appellant
Attorney:J. F. Williams, Joseph Park and Kersey & Meighan for appellant. John M. Wood, Attorney General, for the State.
Judge Panel:Sherwood, J. Ray, C. J., absent.
Case Date:November 18, 1889
Court:Supreme Court of Missouri
 
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Page 358

12 S.W. 358 (Mo. 1889)

98 Mo. 672

The State

v.

Griffin, Appellant

Supreme Court of Missouri

November 18, 1889

October, 1889

Appeal from McDonald Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

J. F. Williams, Joseph Park and Kersey & Meighan for appellant.

John M. Wood, Attorney General, for the State.

(1) Neither the application for a continuance, nor the evidence, motion for a new trial or in arrest are made part of the record by being incorporated in a bill of exceptions, and they cannot be noticed by this court. Mere references to them in the bill by citing the page on which they appear is not sufficient. Jefferson City v. Opel, 67 Mo. 394; Sturdevant v. Watkins, 47 Mo. 177; State v. Shehan, 25 Mo. 565; State v. Marshall, 36 Mo. 400; Blount v. Fink, 55 Mo. 455; Roberts v. Bartlett, 26 Mo.App. 611; Jones v. Christian, 24 Mo.App. 540; Morrison v. Lehen, 17 Mo.App. 633. The motion for a new trial, in arrest of judgment and instructions, are not copied or set forth in the bill of exceptions, and there is no direction to the clerk to copy the same, as required by section 3776, as amended in 1885. (Laws 1885, p. 219.) So far as pertains the application for a continuance and the evidence, said act does not include the omission of either from the bill of exceptions, and a reference to them in the bill is insufficient to make them a part of the record. (2) No question can be raised as to the sufficiency of the indictment, and on the record proper the judgment should be affirmed. (3) Had the instructions been properly incorporated in the bill of exceptions, neither the record nor the bill of exceptions shows that any objections were ever made or exceptions saved to the giving of any of the instructions, and this court will not review the action of the trial court in giving said instructions. State v. McDonald, 85 Mo. 539, and authorities cited.

Sherwood, J. Ray, C. J., absent.

OPINION

[98 Mo. 673] Sherwood, J.

-- The defendant was charged by the indictment with murder in the second degree. When [98 Mo. 674] tried, he was convicted of that offense, and his punishment assessed at ten years in the penitentiary, and, being sentenced accordingly, he appeals at this court.

Section 3776, Revised Statutes, 1879, has been materially amended by the act approved March 31, 1885. Acts, 1885, p. 219. The...

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