State v. Bailey

• Decision Date: 28 January 1916
• Citation: State v. Bailey, 192 Mo. App. 391, 181 S.W. 605 (Mo. App. 1916)
• Parties: STATE OF MISSOURI, Respondent v. NATHAN BAILEY, Appellant
• Court: Missouri Court of Appeals

181 S.W. 605

192 Mo.App. 391

STATE OF MISSOURI, Respondent v. NATHAN BAILEY, Appellant

Court of Appeals of Missouri, Springfield

January 28, 1916

Appeal from the Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.

AFFIRMED.

Judgment affirmed.

STURGISJ. Robertson, P. J., and Farrington, J., concur.

OPINION

Submitted on the Record.

STURGIS J.

--The defendant was tried and convicted on an information charging him with buying and receiving stolen property, knowing the same to have been stolen.The jury found the property to be of less value than thirty dollars and assessed the punishment at a fine of one hundred dollars, from which the defendant has appealed.Although defendant was represented in the trial court by able counsel, we are not favored with any statement or brief from either party in this court.The case is submitted on the transcript of the record alone.

The appeal in this case was granted July 23, 1914, at which time defendant was given by court order ninety days within which to file his bill of exceptions.No bill of exceptions was filed within the time so given and no further extension of time was given by court order or stipulation of parties made within such extended time.If, therefore, the validity of the bill of exceptions and its being made a part of the record for the purpose of review by this court is dependent on any extension of time by order of court or stipulation of parties, such bill of exceptions must be disregarded here.State v. Granger,203 Mo. 586, 102 S.W. 498;State v. Cutberth,203 Mo. 579, 102 S.W. 658;State v. Leahy,226 Mo. 519, 523, 126 S.W. 399, and cases cited.

The bill of exceptions was signed by the trial judge and filed by an order of court then made on April 28, 1915.The transcript of the case was filed in this court on June 17, 1915.Is the bill of exceptions, included in the transcript here, a part of the record under the Laws of Missouri 1911, page 139, amendingsection 2029,Revised Statutes 1909?The proviso then added to this section gives an appellant in a civil case the right to have his bill of exceptions signed and filed, regardless of any extension of time therefor, "at any time before the appellant shall be required by the rules of such appellate courts respectively to serve his abstract of the record."This proviso refers to the rules of appellate courts as to filing abstracts made under the power granted by sections 2048 and 2051 Revised Statutes 1909.

The Supreme Court, in State v. Rogers,253 Mo. 399, 407, 161 S.W. 770, held that, in view of the fact that section 5245,Revised Statutes 1909, providing for filing bills of exceptions in criminal cases, provides that same may be signed and filed as allowed by law in civil cases, the amendment above noted applies to filing bills of exceptions in criminal cases also, the court remarking: "Consequently, when the civil code was amended in 1911 so as to permit the filing of bills of exceptions after the time would expire within which the court might require such bills to be filed, section 5245, supra, underwent the same amendment, and bills of exceptions may be filed in criminal cases within the same time and under the same terms and conditions as in civil cases."And in State v. Prince,258 Mo. 315, 330, 167 S.W. 535, the court said: "Under section 2029,Revised Statutes 1909, as amended byLaws 1911, p. 139, a trial judge may now approve, sign and order a bill of exceptions filed after the expiration of the time granted for filing same, and the clerk may file such bill in vacation without any previous order of the court, except the order of the judge in vacation embraced in his certificate showing that the bill has been approved and signed by him."

In State v. Conners,258 Mo. 330, 167 S.W. 429, the Supreme Court ruled that what is termed the short method of perfecting appeals is not applicable to criminal cases and that a defendant cannot perfect his appeal by first filing a certified copy of the judgment and order granting the appeal and thereafter filing abstracts of the record as provided under section 2048,Revised Statutes 1909, but must, in such cases, file a full transcript as provided by sections 5308and5309,Revised Statutes 1909.Such also is the holding of this court in State v. Faith,180 Mo.App. 484, 493, 166 S.W. 649.See, also, State ex rel. Pedigo v. Robertson, decided by the Supreme Court at this term.Nor are abstracts of the record required to be filed in any criminal case, but the appellate court must proceed to render judgment on the record without any assignment of error.[Section 5312,Revised Statutes 1909;State v. Davidson,73 Mo. 428;State v. Meyers,99 Mo. 107, 12 S.W. 516;State v. Faith,180 Mo.App. 484, 493, 166 S.W. 649;State v. Lane (Kansas City Court of Appeals)180 S.W. 394.]Certainly the defendant cannot here insist that there is any rule of court requiring an abstract of the record to be filed at any time, since this case is presented without abstract, statement or brief.

Granting therefore, that defendant, under Laws 1911, page 139, supra, has as in civil cases the right to file his bill of exceptions at any time before he, as appellant, "shall be required by the rules of such appellate court to serve his abstract of the record" when did such time expire?Neither this nor any other appellate court has any rule specifying when abstracts of record in criminal cases shall be served, for none are or can be required.This court and the other appellate courts have a rule (our Rule 16) strictly enforcing the provisions of section...