State v. Hardy
| Citation | 98 S.W.2d 593 |
| Decision Date | 17 November 1936 |
| Docket Number | No. 35057.,35057. |
| Parties | THE STATE v. HURT HARDY, JR., Plaintiff in Error. |
| Court | United States State Supreme Court of Missouri |
Appeal from Ste. Genevieve Circuit Court. — Hon. Taylor Smith, Judge.
AFFIRMED.
Threlkeld & Coffer for plaintiff in error.
(1) The court erred in forcing defendant to a trial before a jury. 16 C.J. 1270, sec. 3012; 22 L.R.A. 744; 16 C.J. 402, sec. 738. (2) The court erred in permitting the State to present proof in its case in chief that the defendant was sane. Pennsylvania v. Shrope, 6 A.L.R. 696; McCanley v. United States, 174 N.W. 509. (3) The court erred in permitting the jury to pass upon the issue of guilt or innocence of the defendant. Authorities under point 1.
Roy McKittrick, Attorney General, and Wm. W. Barnes, Assistant Attorney General, for defendant in error.
Failure to file motion for new trial prevents review of errors assigned in bill of exceptions. State v. Madden, 24 S.W. (2d) 1004; State v. Turpin, 61 S.W. (2d) 949; State v. Legan, 80 S.W. (2d) 122.
Hurt Hardy, Jr., was convicted of the murder, in the first degree, of Ethel Fahnestock in the Circuit Court of Ste. Genevieve County, and a judgment imposing the death sentence was entered in accord with the verdict of the jury. He prosecutes this review by writ of error.
The evidence establishes that defendant was "very much" in love with deceased. He endeavored to acquiesce in her desire to end their friendship and association. He held deceased in the highest esteem. Defendant testified he was unable to give deceased up and "came to the conclusion that the only way out was to take my own life and take her with me." This he accomplished in part by arising early on three successive mornings and proceeding to the home of deceased and lying in wait for deceased to attend to her usual morning chore of milking the cows. On the first morning defendant was about forty yards from deceased when he saw her and thought the distance was too great. On the second morning deceased was accompanied by her little brother and defendant desisted from his nefarious purpose on account of the child. On the next morning he determined to kill deceased, and secluded himself in the hayloft. Then, when deceased was seated and milking, defendant put the gun to his face and shot but deceased, seeing him, threw herself back and the shot did not accomplish its purpose. Defendant testified he did not want to see deceased suffer (deceased was seeking to escape to the house), so he shot again and then again, when deceased fell. She died soon thereafter. There was medical testimony that an examination revealed defendant was suffering from syphilis, described as "4 plus" Wasserman, indicative of the severest degree.
The verdict was returned on November 8th and sentence and judgment was entered on November 15, 1935. Neither the record proper nor the bill of exceptions contains any reference to a motion for new trial and none was filed. Any number of cases may be found in our reports holding the timely filing of a proper motion for new trial, with the due saving of exceptions to the action of the court in overruling the same, are prerequisites to appellate review of any duly presented error of the trial court not appearing on the face of the record proper. However, counsel here, who did not represent appellant below, present the contention that since this review is by writ of error issuing out of this court for the purpose of correcting errors of the trial court, and not by appeal, all errors occurring during the progress of the trial (and from their brief whether or not preserved by due objection and exception) or shown by the record proper are available upon this review.
[1] Originally, under the practice in England, an appeal (unknown to the common law and borrowed from the civil law) was confined to chancery, ecclesiastical and admiralty proceedings — proceedings in courts functioning without the aid of a jury; while a writ of error (known alone to common-law courts) was the only method for the review of a common-law case . In Missouri the distinctions between the ancient functions of writs of error and appeals have been modified or obliterated as our legislation has combined and amalgamated the scope of the two processes for review; the principal differences now remaining being in the time when and the manner in which they may be resorted to. Generally speaking, a writ of error brings up for review only matters properly part of the record [3 C.J., p. 307, sec. 15], the object of the writ at common law being to correct errors of law [3 C.J., p. 305, sec. 14]. A complete transcript of the record on review now usually consists of two parts — one commonly designated the record proper; the other, the bill of exceptions, which latter becomes a part of the record upon being incorporated into the record proper by reference. The preservation of exceptions taken during the progress of a trial for appellate review was unknown to the early common law. To remedy this situation the statute of Westminster 2 (13 Edw. I) Stat. 1, c. 31, was passed in 1285, providing for the allowance of an exception; but said statute uniformily was held not to apply to criminal cases involving a felony [2 Bishop's New Crim. Proc. (2 Ed.), sec. 1265, p. 1094, n. 49, and cases there cited; 2 Chitty's Practice (Ed. of 1836), p. 374; 3 Wharton's Crim. Proc. (10 Ed.), p. 2141, sec. 1705; 2 R.C.L., p. 140, sec. 113; 3 Am. Jur., p. 239, sec. 624]. The common law and general statutes of England in force as of the fourth year of the reign of James I were adopted in this State [Sec. 645, R.S. 1929, Mo. Stat. Ann., p. 4894]; and the Missouri cases wherein the issue was discussed are to the effect that in reviews of prosecutions for felony, a writ of error, under the common law, brought up only the record proper, and defendant was not entitled to a bill of exceptions [Mitchell v. State, 3 Mo. 283, 25 Am. Dec 442; See also Vaughn v. State, 4 Mo. 290; State v. Van Matre, 49 Mo. 268, 270; State v. Dimmick, 331 Mo. 240, 243(I), 53 S.W. (2d) 262, 263 (1, 2)]. The position taken by plaintiff in error finds no support at the common law.
[2] Under Missouri statutory enactments defendants in criminal cases may be awarded new trials upon application [Sec. 3733, R.S. 1929, Mo. Stat. Ann., p. 3272], and a review of the proceedings in the trial court may be had by appeal — of statutory origin — [Sec. 3740, R.S. 1929, Mo. Stat. Ann., p. 3286] or writ of error — of common law origin — [Sec. 3741, Ibid]. The remanding of a cause upon review proceedings instituted by a defendant results in a new trial [Sec. 3763, R.S. 1929, Mo. Stat. Ann., p. 3304], which proceeds in the same manner as if such cause had not been removed [Sec. 3767, R.S. 1929, Mo. Stat. Ann., p. 3305]. Appellants and plaintiffs in error are placed on an equal footing in the taking and saving of exceptions for appellate review [Secs. 3756, 3757, R.S. 1929, Mo. Stat. Ann., pp. 3292, 3295]. Exceptions may be made in the same cases and manner as provided by law in civil cases [Sec. 3695, R.S. 1929, Mo. Stat. Ann., p. 3251] and the practice prevailing in civil cases applies in certain other respects to criminal proceedings [Sec. 3679, R.S. 1929, Mo. Stat. Ann., p. 3227; Sec. 3680, R.S. 1929, Mo. Stat. Ann., p. 3227], except as otherwise provided by statute. The modern theory of the purpose of appellate review is the correction of all errors occurring during the progress of the trial, but as a condition precedent to appellate consideration of alleged error not appearing upon the face of the record due presentation and saving of the issue must be had in the trial court and a proper opportunity must have been afforded the trial court to review and revise its own rulings by a motion for new trial, in arrest, or other appropriate motion. Rights which formerly could have been presented by motions in arrest may now be saved in the motion for new trial, the motion in arrest being abolished in criminal proceedings [Sec. 3736, R.S. 1929, Mo. Stat. Ann., p. 3283]. A motion for new trial must set forth the grounds therefor in the manner and form prescribed by law and be timely filed [Sec. 3735, R.S. 1929, Mo. Stat. Ann., p. 3275]. If not so filed, exceptions taken and saved during the progress of the trial are not preserved for review upon writs of error [State v. Marshall, 36 Mo. 400, 402; Polk v. State, 4 Mo. 544, 549 (as to a motion in arrest: State v. Rosenblatt, 185 Mo. 114, 119, 83 S.W. 975, 976; as to a civil case: Spotts v. Spotts, 331 Mo. 917, 925(1), 55 S.W. (2d) 977, 980(1-4)] or appeal [see, among others, State v. Baird, 297 Mo. 219, 225 (II), 248 S.W. 596, 598(3); State v. Pritchett, 219 Mo. 696, 705, 119 S.W. 386, 388].
Absent a motion for new trial, we have for consideration only the record proper [see, among others, cases, supra; McGee v. State, 8 Mo. 495; Sec. 3760, R.S. 1929, Mo. Stat. Ann., p. 3298].
[3] The record proper shows that defendant entered a plea of guilty upon arraignment; that the court rejected the same and directed a plea of not guilty to be entered; and that defendant thereupon put himself upon the country. Defendant contends the court erred in rejecting his plea of guilty and putting him to trial before a jury.
An examination of all authorities cited by defendant discloses statements in some of them to the effect there is no doubt of defendant's right to plead guilty, notably: 8 R.C.L., p. 114, sec. 82, n. 8; 16 C.J., p. 400, sec. 734, n. 46; State v. Branner, 149 N.C. 559, 63 S.E. 169; Pope v. State, 56 Fla. 81, 47 So. 487, 16 Ann. Cas. 972. In no instance did the court have under consideration a situation wherein the trial court had rejected a plea of guilty. The statements (without...
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