Mitchell v. State
| Decision Date | 31 October 1833 |
| Citation | 3 Mo. 283 |
| Parties | MITCHELL v. THE STATE. |
| Court | Missouri Supreme Court |
ERROR FROM ST. LOUIS CIRCUIT COURT.
This was an indictment against Mitchell for murder, verdict of guilty and judgment of death in the Circuit Court, to reverse which judgment, the plaintiff now prosecutes his writ of error in this court. Mitchell excepted to the judgment of the Circuit Court on several matters arising in the progress of the trial below, tendered his bill of exceptions and had them signed by the court; and in that way caused the matters of exception to be spread upon the record. In this state of the case a motion has been made by Mr. Allen (Circuit Attorney) to quash the writ of error; and two questions are presented for the consideration of this court. First. Will a writ of error lie in a capital case? Second. Was the prisoner entitled to his bill of exceptions?
The authorities cited (2 Tidd. 1188, 2 Salk. 504, 2 Learned 101) lay down the law clearly as settled and administered in the English courts. It is undoubted law that in England the writ of error in cases of treason or felony will not lie without the consent of the King. It is then a matter of grace and favor. It has been held by this court, however, and may be now taken as the settled law of this land, that here the party will be entitled of right to his writ, in all cases where in England he would have it with or without the consent of the Crown.
It remains now to consider the effect of the writ, and whether the bill of exceptions can be allowed or considered in this case. This question has been elaborately and ably argued by Mr. Bates, of counsel for the prisoner, and by Mr. Allen for the State. It is not proposed to examine the arguments and authorities in detail, but merely to state the principal positions assumed, and our understanding of the law in regard to them. It is insisted that a bill of exceptions is a mere corollary or necessary incident to the writ of error, and that the writ of error being a writ of right, in all cases, criminal as well as civil, in order to make it effectual the suitor must be allowed in all cases his bill of exceptions. It is answered that the writ of error removes merely the record proper. That the bill of exceptions is intended to place upon the record some matter that would not appear in the regular progress of the cause. In looking into the record proper, it may be seen if the inferior Courts have jurisdiction of the subject matter and proceed regularly to judgment. The collateral means to be employed, or steps...
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State v. Dimmick
...... murder case was reversed and remanded for failure to grant a. change of venue. . . But in. State v. Henry (a slave), 2 Mo. 218, the court said. a bill of exceptions does not lie in a criminal case either. at common law or under the statute; and in Mitchell v. State, 3 Mo. 283, it was ruled that while a writ of. error could be had in a capital case, the plaintiff in error. was not entitled to a bill of exceptions. The argument for. the writ, as reported in the opinion, was almost a. counterpart of what has been presented in the instant case. The ......
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State v. Dimmick
...2 Mo. 218, the court said a bill of exceptions does not lie in a criminal case either at common law or under the statute; and in Mitchell v. State, 3 Mo. 283, it was ruled that while a writ of error could be had in a capital case, the plaintiff in error was not entitled to a bill of excepti......
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State v. Hardy
......Ann., p. [339 Mo. 900] 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;. [98 S.W.2d 595] . 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. . . \xC2"......
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State v. Hardy
......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. 98 S.W.2d 595. 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 ......