The State v. Griffin

• Decision Date: 18 November 1889
• Parties: The State v. Griffin, Appellant
• Court: Missouri Supreme Court

12 S.W. 358

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

Sherwood, J.

-- The defendant was charged by the indictment with murder in the second degree. When 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 amendatory section, so far as necessary to quote, reads as follows: "But it shall not be necessary for the review of the action of any lower court on appeal or writ of error, that the motion for a new trial, in arrest of judgment, or instructions filed in the lower court shall be copied or set forth in the bill of exceptions filed in the lower court, provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court."

Under the well-settled practice and rule of this court, the evidence, the motion for new trial and in arrest, application for continuance and instructions, in short, all matters of exception not constituting part of the record proper, had to be incorporated in the bill of exceptions, or else they would not be noticed by this court; and the same rule applies in this regard in criminal, as in civil causes. R. S. 1879, secs. 1921, 3635, 3636; State v. Shehane, 25 Mo. 565; Jefferson City v. Opel, 67 Mo. 394; Baker v. Loring, 65 Mo. 527; Stevenson v. Saline County, 65 Mo. 425; Sturdivant v. Watkins, 47 Mo. 177; State v. Wall, 15 Mo. 208; State v. Treace, 66 Mo. 124; Blount v. Zink, 55 Mo. 455; State v. Marshall, 36 Mo. 400; Tower v. Moore, 52 Mo. 118; State v. Dunn, 73 Mo. 586; State v. McCray, 74 Mo. 303; State v. Robinson, 79 Mo. 66; McCarthy v. McGinnis, 76 Mo. 344.

As already seen, however, section 3776, as amended has so far modified and amended the rule heretofore prevailing, that the motions for new trial, in arrest or instructions filed in the lower court, need no longer be copied or set forth in the bill of exceptions, "provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court." In this case, the motions for a new trial, in arrest, and the instructions are not copied or set forth in the bill of exceptions, nor is there in the bill of exceptions any direction to...