State v. Arrowood

• Decision Date: 18 December 1928
• Docket Number: 29030
• Citation: 11 S.W.2d 1015
• Parties: STATE v. ARROWOOD
• Court: Missouri Supreme Court

11 S.W.2d 1015

STATE v. ARROWOOD

No. 29030

Supreme Court of Missouri, Second Division

December 18, 1928

E. M. Tipton, of Kansas City, and R. P. Duncan, of Excelsior Springs, for appellant.

Stratton Shartel, Atty. Gen., and Mary Louise Ramsey, Sp. Asst. Atty. Gen., for the State.

OPINION

BLAIR, J.

Appellant was convicted of murder in the second degree, and, in accordance with the verdict of the jury, was sentenced to imprisonment in the state penitentiary for 35 years, for the killing of one George Duncan in Clay county on August 14, 1927. After moving unsuccessfully for a new trial, he was granted an appeal to this court.

The learned Attorney General contends that there is nothing before this court for review, except the record proper. An examination of the bill of exceptions incorporated in the record fails to disclose that appellant lodged any exception to the action of the trial court in overruling either his original or supplemental motions for new trial. Under a long line of decisions this court has uniformly ruled that, where the record fails to show that an exception was saved to the action of the trial court in overruling the motion for new trial, none of the grounds for new trial set forth in said motion is for review upon appeal. This rule is well shown by the following cases cited in the brief of respondent: State v. Parnell, 206 Mo. 723, 105 S.W. 742; State v. Crites, 215 Mo. 91, 114 S.W. 618; State v. Harris, 216 Mo. 392, 115 S.W. 968; State v. McGauley, 247 Mo. 670, 153 S.W. 1055; State v. Truedell (Mo. Sup.) 192 S.W. 404.

The information has not been assailed by appellant. Nevertheless, we have carefully examined it and find that it charged appellant with the crime of murder in the first degree and in so charging used the formal and appropriate language many times approved by this court. By its verdict the jury found the appellant guilty of murder in the second degree and assessed his punishment at imprisonment in the state penitentiary for a term of 35 years. Such verdict was fully responsive to the charge contained in the information and was unassailable in form and substance, and fully warranted the judgment rendered thereon in due form after according to appellant the benefit of all his legal rights.

We find no error in the record proper, and the judgment is accordingly affirmed.

All concur.