State v. Beedle

• Decision Date: 30 November 1915
• Docket Number: No. 18738.,18738.
• Parties: STATE v. BEEDLE.
• Court: Missouri Supreme Court

180 S.W. 888

STATE v. BEEDLE.

No. 18738.

Supreme Court of Missouri, Division No. 2.

November 30, 1915.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Claude T. Beedle was convicted of crime, and he brings error. Affirmed.

Defendant, charged by an information filed in the circuit court of Vernon county with violating the provisions of section 4496, was upon his trial convicted, and his punishment fixed at a fine of $1,000. From this conviction, after the conventional motions, he has appealed.

Such of the facts as are not set out in the opinion in connection with a discussion of the points therein raised, run thus: Defendant, about 6 o'clock in the afternoon of the 14th day of March, 1913, came into the town of Sheldon in Vernon county and went to a livery stable owned by Triplett, but managed by one Brown, for the purpose of putting up his horse and buggy. There he got into some sort of altercation with Brown, in the course of which he drew a pistol. There was some proof that defendant was drinking upon this occasion. Very shortly afterwards and on the same day, but at what precise hour does not clearly appear, defendant exhibited a pistol at the livery stable of one Beeny in the town of Sheldon, and still later he drew a pistol and fired it either intentionally or by accident, in the barber shop of one Sharp about 7 o'clock in the evening of the same day and in the same town. The evidence as to the manner in which the pistol was fired is conflicting; since it does not clearly appear whether the pistol was fired by defendant's intentionally pulling the trigger or whether it was fired by his accidentally dropping it upon the barber shop floor. After it fell to the floor he permitted it to lie there and it was picked up later by some one else and afterwards delivered to defendant's father, who called at the barber shop and got the pistol and carried it away, pursuant (so, the testimony of defendant runs) to the prior request of defendant to that end, and in order that the pistol might be taken to defendant's mother, who lived in Kansas City.

Further facts, sufficient to make clear the assignments of error made in the brief and in the motion for a new trial, will be found set out in the opinion in connection with the discussion of defendant's several contentions.

H. T. Herndon, of Kansas City, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

FARIS, P. J. (after stating the facts as above).

Two points are urged upon us in the brief of defendant for the reversal of this case: (a) That the foreman of the trial jury and the learned judge nisi exchanged written communications with one another about the case while the jury was engaged in deliberating touching their verdict; and (b) that the record fails to show the presence of the defendant when the verdict of the jury came in and when judgment was rendered. Another point is found in the motion for a new trial, viz.: (c) That evidence of three separate and distinct offenses was let into the case upon the trial.

I. It is fundamental that we are bound by what the record in the case shows, and that such record imports absolute verity. State v. O'Kelley, 258 Mo. 345, 167 S. W. 980, 52 L. R. A. (N. S.) 1063. This is a rule of necessity (Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097) and has no exceptions. Adverting to this necessary source of information we find it set down therein that while the jury had their verdict under consideration the foreman wrote a note to the trial judge, which he signed as foreman, and which (signature omitted) read thus:

"The Point. If we assess a fine can it be collected if the party is financially able to pay or in other words can he lay out his fine if he so elects ?"

The learned trial judge wrote on the slip of paper containing the note of the foreman, the following reply which he signed, to wit:

"If party is able to pay execution issued and the fine collected. If fine cannot be collected the party is sent to jail and stays there until fine is laid out at the rate of $2 per day."

In the case of State v. Alexander, 66 Mo. loc. cit. 164, this court said:

"In Sargent v. Roberts, 1 Pick. 34:1 Parker, C. J., delivering the opinion of the court, said: `We are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury after the cause has been committed to them by the charge of the judge, unless in open court, and where practicable, in the presence of the counsel in the cause.' In. Graham and Waterman on New Trials, vol. 2, p. 360, it is said that `the practice of the courts addressing private notes to the jury, cannot be sufficiently condemned.' But it is unnecessary to cite authorities to prove a proposition which at once commends itself to our sense of justice and fairness. The jury are the triers of the facts, and the court has no more right to interfere with them while considering of their verdict, except in open court, to discharge them from time to time, or in the presence of the accused and his counsel, to instruct them as to the law of the case, than the jury have to invade the province of the court"

The doctrine in the Alexander Case, supra, has been uniformly followed by this court in both civil and criminal cases. State v. Nelson, 181 Mo. loc. cit. 345, 80 S. W. 947, 103 Am. St. Rep. 602; State v. Hill, 91 Mo. loc. cit. 428, 4 S. W. 121; McPeak v. Railroad, 128 Mo. loc. cit. 644, 30 S. W. 170. But conceding that this communication between court and jury is not warranted and when properly before us for review is always to be held reversible error, we find in the instant case no proper preservation of the point upon the record. In fact, while it appears physically in the bill of exceptions, which is made a part of the record by the fact of exception, it has no place there, since no exception was lodged to it at the time, and since no proof is made elsewhere or otherwise that it actually occurred, it is not properly in the bill of exceptions. The bill of exceptions and all of its contents (timely and proper settling, signing, and filing being granted), become a part of the record for our review because of exceptions made and saved, and not otherwise. Nothing is ever properly in a bill of exceptions unless an exception has been made to it. Of course and of necessity we pretermit the whole evidence in the case and the instructions, much and many of which are not specifically excepted to, but which come into a bill of exceptions with the matters and things specifically excepted to, in order that we may see from the whole, whether the exceptions to the part are well taken. Perhaps also the rule of review in equity cases in a sense is an exception, but we need not pause here to investigate if that be true; for after all the evidence comes up to us upon an exception saved to the overruling of the motion for a new trial. And in any event the general rule is true and applies in this case. The objectionable communications between court and jury here are not properly in the record, and so we cannot review them, because no objection or exception was made or saved to the action of the court and jury in making them. If we were wrong in saying...