State v. Chilton

• Decision Date: 06 February 1918
• Docket Number: No. 2089.,2089.
• Citation: 200 S.W. 745,199 Mo. App. 220
• Parties: STATE v. CHILTON.
• Court: Missouri Court of Appeals

200 S.W. 745

199 Mo. App. 220

STATE v. CHILTON.

No. 2089.

Springfield Court of Appeals. Missouri.

February 6, 1918.

Appeal from Circuit Court, Carter County; E. P. Dorris, Judge.

J. J. Chilton was convicted in justice court of disturbing the peace of an individual and appealed to the circuit court, and from its judgment of guilty, he appeals. Affirmed.

L. O. Nieder, of Mansfield, for appellant.

BRADLEY, J.

The prosecuting attorney of Carter county filed before a justice of the peace an information against defendant charging him with disturbing the peace of an individual. Not content with the outcome before the justice, defendant appealed to the circuit court; and there, upon trial before the court and a jury, he was found guilty as charged, and his punishment fixed at a fine of $1. From this defendant sought to appeal to this court.

At the threshold of the merits we are confronted with this condition: Appellant has undertaken to bring his cause to this court by what is generally designated the short-form appeal under section 2048, R. S. 1909, which is not wholly applicable to criminal cases. State v. Conners, 258 Mo. 330, 167 S. W. 429; State v. McHenry, 188 S. W. 187; Golden City v. Hall, 68 Mo. App. 627; State v. Faith, 180 Mo. App. 484, 166 S. W. 649; State v. Jones, 198 S. W. 421. Appellant was tried below on April 9, 1917, and on May 23d there was filed in this court a certified copy of the proceedings and order granting appeal as designated by the clerk in his certificate. This certified copy shows the court, the term, the date, the judgment, and recites the fact that motions for a new trial and in arrest were filed and overruled; and that appeal was granted, and bond taken and approved in open court. It does not recite that any bill of exceptions was ever filed, nor does it contain a copy of the information upon which defendant was tried. Appellant on October 9, 1917, filed in this court a printed abstract of the record, which shows nothing of the record proper except the information and a recital that defendant was convicted below, fined $1, and appealed. Then follows in the printed abstract what is captioned "Bill of Exceptions," in which the evidence is set out in narrative form for the most part, and in the main such as a bill of exceptions is in a civil case. After the signature of the trial judge this appears:

"Bill of Exceptions. Filed July 26, 1917. W. J. Burrows, Circuit Clerk."

This record would be sufficient under our rules in a civil case. Walls v. Tinsley, 187 Mo. App. 462, 173 S. W. 19. We are not inclined to let mere technicalities control; but when a statute commands it is not technical to observe. To disregard it is usurpation and violative of official duty. In State v. Faith, supra, this court said:

"A reading of sections 5308 and 5309, Revised Statutes 1909, providing for appeals in criminal cases, shows that an appeal in a criminal case can only be brought to this court by a full transcript of the record, certified by the clerk of the trial court. We cannot, therefore, review this case and pass on the alleged errors on the printed abstract of the record."

In State v. Conners, supra, it is held that in order to perfect an appeal in a criminal case as required by section 2048, R. S. 1909, it is necessary within one year (there the Supreme Court was speaking of a felony) to file in the office of the clerk of the appellate court a perfect transcript of the record and proceedings of the trial court under the certificate of the clerk. This clearly precludes the appellate court from considering as the record a printed abstract, because it lacks the verity imported by the certificate of the clerk, and it is not a complete or perfect transcript as required by the statute. Section 5309. In State v. McHenry, 188 S. W. 187, the Supreme Court of this state held it to be personally incumbent upon the accused, when appellant in a criminal case, other than convictions which automatically suspend execution, within the time allowed for perfecting the appeal to file with the clerk of the appellate court a full transcript as provided by section 5309, supra. There the court said:

"We held that the filing of a short-form transcript is neither contemplated by statute nor permitted to be done in a criminal case"—citing State v. Short, 250 Mo. 331, 157 S. W. 306.

In State v. Pieski, 248 Mo. 718, 154 S. W. 748, the court said:

"Upon the appellant in the case at bar, as upon a civil appellant, the statute placed the duty of `causing to be filed in the office of the proper appellate court a perfect transcript.' This duty of initiative is not placed on the clerk of the lower court, but it is saddled by statute upon the appellant, except in appeals in convictions for capital offenses, when such latter clerk acts of his own volition by statutory mandate. In other words, while the clerk is required to act, in acting he does so upon the request and at the direction of the appellant. Nor does section 2053, Revised Statutes 1909, when carefully read, militate against this view. Appellant must not only himself see that his transcript is transmitted to and filed in the office of the appellate court, but it is his duty to see that it is filed and entered on the docket in the proper manner."

The appellant in a criminal case must walk in the footprints, as above stated, of a civil appellant in causing to be filed in the time allowed, in the office of the proper appellate court, a perfect transcript of his record, and this cannot be done by filing a...