State v. Bliss
| Citation | 99 S.W.2d 71 |
| Decision Date | 17 November 1936 |
| Docket Number | No. 35047.,35047. |
| Parties | STATE v. BLISS et al. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Ripley County; Robert I. Cope, Judge.
Elbert Bliss and Walter Compton were convicted of attempted arson, and they appeal.
Affirmed.
Chas. H. Richeson and Samuel Richeson, both of Potosi, for appellants.
Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.
The appellants were convicted in the circuit court of Ripley county, Mo., of the crime of attempted arson and their punishment assessed at two years in the state penitentiary.
This is the second appeal in this cause. The first appeal is reported in (Mo.Sup.) 80 S.W.(2d) 162, wherein the judgment was reversed and the cause remanded, with directions to the trial court to bring the appellants before it and to proceed to assess and declare the punishment of each appellant separately. The original judgment did not assess the punishment separately as required by section 3702, R.S.Mo.1929 (Mo.St.Ann. § 3702, p. 3258). Pursuant to the mandate of this court, on April 29, 1935, the trial court brought the appellants before it and separately sentenced each appellant in accordance with the verdict of the jury. Thereafter, on the same day, the appellants filed what they called a "motion in arrest of the judgment," which was overruled on that date. Thereafter, on the same date, the appellants were granted another appeal to this court.
I. On the first appeal our review was limited to the record proper because there was filed here what appeared to be the original bill of exceptions. It did not have attached any certificate of any nature by the circuit clerk as to its genuineness, correctness, or authenticity, and the record proper contained no reference whatsoever to any bill of exceptions. On this appeal the appellants have brought before us a properly certified bill of exceptions.
It is the contention of the respondent that the bill of exceptions can not be reviewed by us on this appeal, for the reason that all questions were adjudicated on our first appeal, except matters that occurred in the trial court after our mandate was filed there. We agree with the respondent. If the appellants wanted their bill of exceptions reviewed by us, it was their duty to have before us in the first appeal a proper bill of exceptions. It was their negligence that prevented us from reviewing the bill of exceptions on that appeal. It is a familiar rule of law that a judgment on the merits concludes the parties not only as to the things determined, but as to matters which might have been litigated. Donnell v. Wright, 147 Mo. 639, 49 S.W. 874. If the bill of exceptions had been before us on the first appeal, it would have been reviewed. The doctrine of res judicata is applicable to an appellate court as well as to a trial court. Chouteau v. Gibson, 76 Mo. 38. It therefore...
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...appellate court as it is on a trial court. State ex rel. Metropolitan Life Ins. Co. v. Hughes, 347 Mo. 549, 148 S.W.2d 576; State v. Bliss, Mo., 99 S.W.2d 71, 72; Chouteau v. Gibson, 76 Mo. The further point is made by appellant that the judgment of this court in the prior case referred to ......
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