State v. Addington

• Decision Date: 25 May 1926
• Docket Number: 27012
• Citation: 285 S.W. 736
• Parties: STATE v. ADDINGTON
• Court: Missouri Supreme Court

285 S.W. 736

STATE v. ADDINGTON

No. 27012

Supreme Court of Missouri, Second Division

May 25, 1926

Noth T Gentry, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.

OPINION

RAILEY, C.

On April 14, 1925, the prosecuting attorney of Taney county Mo., filed in the circuit court of said county, a verified information which, without caption and verification, reads as follows:

'Comes now A. H. Blunk, prosecuting attorney within and for the county of Taney, in the state of Missouri, and upon his oath of office informs the court that on or about the -- day of November, 1924, at and in the county of Taney and state of Missouri, aforesaid, that one Wade Addington, late of the county of Taney and the state of Missouri, did then and there unlawfully, willfully, and feloniously manufacture, make, brew, and distill hootch, moonshine, contrary to the form of the statute made and provided, against the peace and dignity of the state. A. H. Blunk.

'Prosecuting Attorney.'

Defendant was arraigned, entered a plea of not guilty, and was granted a continuance until the next regular term of said court. On October 21, 1925, a trial was had before a jury, and the following verdict returned:

'We, the jury, find the defendant, Wade Addington, guilty as charged in the information, and assess his punishment at two years' imprisonment in the state prison.

'A. E. Dean, Foreman.'

The record proper recites, that thereafter allocution was granted defendant, judgment rendered, sentence pronounced in conformity with the verdict aforesaid, and an appeal allowed defendant to this court. The record proper does not show the filing or overruling of a motion for a new trial. The clerk at the end of the transcript certifies that:

The 'foregoing is a true, full, and complete transcript of all the records and files of the proceedings in the case of the State of Missouri, Plaintiff, and Wade Addington, Defendant, as the same appears of record in my office, and wherein said defendant is charged with manufacturing moonshine.'

The bill of exceptions shows the filing and overruling of a motion for a new trial, but there is nothing in the record proper, which either directly or inferentially shows the filing or overruling of a motion for a new trial.

I. We have repeatedly held that the record proper must show the filing and overruling of the motion for a new trial, in order that this court may pass upon the proceedings which took place during the trial. We have likewise held, in many cases, that the bill of exceptions does not prove itself, and is valueless, unless the record proper shows the filing of the motion for a new trial, etc. State v. Brown (Mo. Sup.) 279 S.W. 98; Wilson v. Reed, 270 Mo. 400, 193 S.W. 819; Case v. Carland, 264 Mo. 463, 175 S.W. 200; Dalton v. A. L. Register & Co., 248 Mo. 150, 151, 154 S.W. 67; Hogan v. Hinchey, 195 Mo. loc.. cit 533, 94 S.W. 522.

The foregoing authorities, as well as numerous others which might be cited, conclusively hold that, unless the...