State v. Langford

• Decision Date: 07 April 1922
• Docket Number: No. 23046.,23046.
• Citation: 240 S.W. 167,293 Mo. 436
• Parties: STATE v. LANGFORD
• Court: Missouri Supreme Court

240 S.W. 167

293 Mo. 436

STATE v. LANGFORD

No. 23046.

Supreme Court of Missouri, Division No. 2.

April 7, 1922.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

James H. Langford was convicted of common assault, and he appeals. Affirmed.

John L. Burns, of Troy, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

WALKER, J.

The defendant was charged by information in the circuit court of Lincoln county with a felonious assault. Upon a trial he was convicted of a common assault, and his punishment fixed at a fine of $200. From this judgment he appealed.

The prosecuting witness was a road overseer. In May, 1917, he, with two others, were grading a public road with a road grader. This road ran by the house of defendant. When they reached a point on the road opposite his house, he came out, carrying a heavy hoe, and ordered them to stop the work, saying: "Take up that grader blade. I ain't going to have no grading done here." The overseer said: "Drive on, boys." The defendant thereupon ran around behind the overseer and hit him twice on the back of the head with the hoe. The blows knocked him down, and he fell in the road. The weapon is described as a heavy iron hoe with a handle about four feet long. A physician was called soon after the assault, who testified that he found the overseer suffering from a gaping wound in the back of his head. It was a ragged wound, as if inflicted with a blunt instrument. The patient was under the doctor's care for several days after the first visit. At the time of the assault the overseer was directing the use of the grader, and had made no demonstration towards the defendant.

Defendant's relevant testimony is similar in its general purport to that of the state, except that the reply of the overseer, when ordered to desist grading, was, "Oh, the devil! drive on." Defendant admits the assault, but says it was with the hoe handle, and that he struck the second blow to prevent the overseer from "seizing and striking him with a hammer, a wrench, a piece of iron, or something." Where these weapons were he does not state. The first assault, witness states, was provoked by the threats stated to have been made by the overseer against the defendant more than a year before the difficulty, when he says the overseer said to him: "Old man, I will fix you some of these days," and about three months before the difficulty that the overseer said to him, "if I ever have any trouble with you, I will sure kill you." This testimony was on rebuttal, denied by the overseer. The jury gave no credence to the testimony of the defendant, but returned a verdict finding him guilty, and assessing his punishment as stated.

I. (a) It is contended that the trial court erred in overruling defendant's motion to quash the information, based on the ground that the defendant had not been accorded a preliminary examination as required by section 3848, R. S. 1910. This motion was filed at the beginning of the trial, and is as follows:

"Now comes the defendant in the above-entitled cause and moves the court to quash the information in this case, and discharge the defendant, for the reason that said defendant has not been afforded a preliminary hearing in said case as provided by section 5056 of the Revised Statutes of Missouri, and Session Acts thereto added for the year 1913."

The disposition of this motion, which comprises all there is in regard to the matter, is shown by the following record entry:

"And said motion, being duly submitted to the court by the respective counsel, was by the court overruled. To which ruling of the court the defendant then and there duly objected and excepted and saved his exceptions."

This motion was in the nature of a plea in abatement, and to entitle it to the consideration of the trial court the defendant should have offered proof in support of same, either by affidavit or other evidence. Section 3959, R. S. 1919; Buckley v. Hall, 215 Mo. loc. cit. 98, 114 S. W. 954; State v. McKee, 212 Mo. loc. cit. 138, 110 S. W. 720.

In the McKee Case we expressly held that the proof of a motion of this character was not established by its mere filing; that its recitals did not prove themselves, and hence a compliance with the statute was necessary. At bar, as in that case, the record discloses nothing more than the mere allegation in the motion to quash that the defendant was not afforded a preliminary examination, the court's ruling and the defendant's exception thereto; there is no proof of the allegation or any refusal on the part of the court to hear the same. The trial court, therefore, did not err in overruling the motion.

(b) The attempted incorporation in the record proper by the clerk of the circuit court of the transcript of the justice's proceedings was without authority. Matters not in fact a part of the record cannot be made so by their inclusion therein by the clerk. This entire matter, therefore, embodying the justice's transcript, constituting, as it did, not a part of the record on appeal, might, upon motion, have been stricken out. State v. Baugh (Mo. Sup.) 217 S. W. loc. cit. 280, and cases; Val Reis Piano Co. v. Gordon (Mo. App.) 207 S. W. loc. cit. 334; 2 R. C. L. § 106, p. 130; Paul v. Cragnaz, 25 Nev. 293, 59 Pac. 857, 60 Pac. 983, 47 L. R. A. 540. It is not a part of the record proper under any theory of the case, nor can it become a part of the bill of exceptions except by having been offered in evidence and being regularly incorporated therein with the ruling thereon. Whatever recitals the justice's transcript may therefore disclose are, under our procedure, not within the purview of our review. State v. Green, 229 Mo. loc. cit. 655, 129 S. W. 700.

(c) Although purely academic, in view of the condition of this record, I am of the opinion that the justice's entry is ample to show that the defendant waived a preliminary examination. A waiver may be made either expressly or by implication. 16 C. J. § 566, p. 318, and notes. The justice's entry, so far as concerns the matter at issue, is as follows:

"Whereupon I issued a state warrant against the defendant and placed the same in the hands of Joe Goodrich, constable of Burr Oak township, Lincoln county, state of Missouri. On the 16th day of May, 1917, said warrant was duly executed by arresting said defendant and having him before the court for examination.

"And the defendant having seen and heard read the information in this cause enters a plea of not guilty in the manner and form as herein charged, this 28th day of May, 1917."

This court has recently, in State v. Flannery, 263 Mo. 579, 173 S. W. loc. cit. 1055, in harmony with earlier cases, defined the object and purpose of a preliminary examination as intended to obviate the possibility of groundless or vindictive prosecutions which might otherwise occur where informations are authorized to be filed and the deliberations of a grand jury dispensed with; also to secure the presence of the accused for a trial if subsequently indicted or an information is filed against him. The examination, therefore, is in no sense a trial, in that the guilt or innocence of the accused is not finally determined, but simply a course of procedure authorized whereby a possible abuse of power by the prosecution may be prevented and a discharge of the accused effected or that he be held to answer, as the facts warrant.

Later, in State v. Ferguson, 278 Mo. loc. cit. 129, 212 S. W. loc. cit. 341, we held, in approving a number of earlier cases, that a preliminary examination may be waived not only before the examining tribunal, but at the time the defendant is required to plead in the trial court, and that, if he pleads the general issue of not guilty, he...