State v. Campbell

• Decision Date: 02 May 1893
• Citation: 115 Mo. 391,22 S.W. 367
• Parties: STATE v. CAMPBELL.
• Court: Missouri Supreme Court

22 S.W. 367

115 Mo. 391

STATE v. CAMPBELL.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

CRIMINAL LAW — NEW TRIAL — REVIEW ON APPEAL.

1. Instructions will not be considered, where they are not incorporated into the bill of exceptions, and the latter contains no direction to the clerk to copy the same.

2. A new trial will not be granted for newly-discovered evidence where the affidavits disclose no diligence, and do not make it appear that the evidence is not cumulative, or that it would be likely to change the result.

3. A motion for a new trial must be accompanied by the affidavit of defendant.

Appeal from circuit court, Newton county; Joseph Cravens, Judge.

Annie A. Campbell was convicted of larceny, and she appeals. Affirmed.

H. C. Pepper, W. Cloud, and A. J. Harbison, for appellant. The Attorney General, for the State.

SHERWOOD, J.

Indicted under the provisions of section 3535, Rev. St. 1889, for stealing the cow of Valentine Rogers, in Barry county, the defendant, on her change of venue to Newton county, was convicted of the theft, and sentence having passed upon, and judgment entered against, her, she appeals to this court.

1. Complaint is made that the two instructions given at the instance of the state are erroneous; but we cannot notice the instructions, because they have not been incorporated into the bill of exceptions, nor does the bill of exceptions contain a direction to the clerk to copy the same, etc. State v. Griffin, 98 Mo. loc. cit. 674, 12 S. W. Rep. 358.

2. Complaint is also made that a new trial should have been granted because of newly-discovered evidence, but we are not of this opinion. The affidavits disclose no diligence, nor that the new evidence is so material as would be likely to change the result were a new trial granted. Nor does it appear that such evidence is not cumulative. State v. Welsor, (Mo. Sup.) 21 S. W. Rep. 443, and cases cited.

3. Moreover, the motion for a new trial was not accompanied by the affidavit of the defendant, as it should have been. 3 Grah. & W. New Trials, pp. 1067, 1071, 1073; State v. McLaughlin, 27 Mo. 111.

4. The testimony in this cause, consisting, as it did, in part, of damaging admissions of the defendant, as well as much other testimony, was amply sufficient. There was some testimony to the contrary; but to the jury belonged the right and authority to determine the innocence or guilt of the defendant, and we are not authorized to disturb the verdict. Therefore,...