2 S.W. 10 (Mo. 1886), State v. Burk

Citation:2 S.W. 10, 89 Mo. 635
Opinion Judge:Ray, J.
Party Name:The State v. Burk, Appellant
Attorney:Hale & Sons and Kinsey for appellant. B. G. Boone, Attorney General, for the state.
Judge Panel:Ray, J. Henry, C. J., not sitting, and Sherwood, J., expresses no opinion.
Case Date:November 15, 1886
Court:Supreme Court of Missouri

Page 10

2 S.W. 10 (Mo. 1886)

89 Mo. 635

The State

v.

Burk, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Carroll Circuit Court. -- Hon. James M. Davis, Judge.

Affirmed.

Hale & Sons and Kinsey for appellant.

(1) As the charge was specific and complete the defendant could be tried on no other; only on section 1262, Revised Statutes; section 22, of Bill of Rights, accords the right "to demand the nature and cause of the accusation." (2) As the offence was complete under section 1262, it was error to instruct the jury under another section; but otherwise if good under such other section. State v. McDonald, 67 Mo. 13. (3) If the law has been changed by the insertion of section 1655, in the Revised Statutes of 1879, a general verdict cannot be sustained upon two sections. State v. Webster, 77 Mo. 566. (4) The verdict of the jury fails to show upon what section or in what degree the defendant is guilty. R. S., sec. 1927; 47 Mo. 295; 58 Mo. 556; 65 Mo. 640; 68 Mo. 120; State v. Matrassey, 47 Mo. 295; State v. McCue, 39 Mo. 112. (5) Referring to section 1655, of the Revised Statutes of 1879, admitting that offences under section 1263 are necessarily included in the higher offence described in the preceding section, it could never have been the intention of the legislature to take from a defendant the right to know the accusation and the degree of guilt of which he is convicted.

B. G. Boone, Attorney General, for the state.

(1) Defendant saved no exceptions, at the time, to the admission or exclusion of evidence, or the giving or refusing of instructions. It is too late to do so for the first time in the motion for a new trial. State v. Marshall, 36 Mo. 400; State v. Pints, 64 Mo. 317; State v. Williams, 77 Mo. 310; State v. Burnett, 81 Mo. 119; State v. McDonald, 85 Mo. 539. (2) The instructions not having been preserved the presumption is that the court properly declared the law to the jury. State v. Sullivan, 51 Mo. 522; State v. Tucker, 84 Mo. 23. (3) The motion for a new trial is improperly copied into the record proper, instead of being made a part of the bill of exceptions. It is no part of the record proper, and not having been made a part of the record of the case, by being incorporated in the bill of exceptions, it will not be considered. State v. Marshall, 38 Mo. 400; State v. Connell, 49 Mo. 232; State v. Sweeney, 68 Mo. 96; State v. Dunn, 73 Mo. 586; State v. McCray, 74 Mo. 303. (4) The judgment in the case should be affirmed.

Ray, J. Henry, C. J., not sitting, and Sherwood, J., expresses no...

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