State v. Borders

• Decision Date: 26 May 1910
• Citation: 128 S.W. 737,228 Mo. 478
• Parties: STATE v. BORDERS.
• Court: Missouri Supreme Court

128 S.W. 737

228 Mo. 478

STATE v. BORDERS.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

CRIMINAL LAW (§ 1092)—APPEAL AND ERROR —FILING BILL OF EXCEPTIONS.

Where the record on appeal in a criminal prosecution fails to show that the bill of exceptions was ever filed, and there is no certificate of the clerk on the bill that it was filed and the date of the filing, the bill will be disregarded as not properly authenticated.

Appeal from Circuit Court, Iron County; Jos. J. Williams, Judge.

William Borders was convicted of arson, and appeals. Affirmed.

E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

FOX, J.

The defendant, under an information filed by the prosecuting attorney of Iron county, charging him with arson, was found guilty of arson in the third degree, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of five years. Motions for new trial and in arrest of judgment were filed by the defendant and overruled by the court, judgment entered of record, and an appeal allowed defendant to this court.

The defendant is not represented in this court, but an examination of the record fails to show that what is termed the bill of exceptions was ever filed; nor is the certificate of the clerk on the bill, indicating the fact and date of filing. In Lafollette v. Thompson, 83 Mo. 199, this court said: "There must be an entry of record to make a bill of exceptions a part of the record. This is indispensable in term time. When leave is granted, with consent of the parties, to file a bill in vacation, there must be some certificate on the bill itself, signed by the clerk, indicating the fact and date of filing, or some entry made by the clerk in the records of the court to that effect." This rule has been stated and approved many times. Roush v. Cunningham, 163 Mo. 173, 63 S. W. 377; Wilson v. St. Louis & San Francisco Ry., 167 Mo. 323, 66 S. W. 928; State v. Rolley, 135 Mo. 677, 37 S. W. 827; Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825; Williams v. Williams, 26 Mo. App. 408, and other cases.

The purported bill of exceptions must be disregarded, as not being properly authenticated. We have examined the record proper, and find no error therein.

The judgment is affirmed. All concur.