State v. Branson

• Decision Date: 05 June 1924
• Docket Number: 25341
• Citation: 262 S.W. 365
• Parties: STATE v. BRANSON
• Court: Missouri Supreme Court

262 S.W. 365

STATE v. BRANSON

No. 25341

Supreme Court of Missouri, Second Division

June 5, 1924

Jesse W. Barrett, Atty. Gen., and George W. Crowder, Asst. Atty Gen., for the State.

OPINION

Statement.

RAILEY C.

On January 23, 1923, an information was filed in the Circuit Court of Jackson county, Mo., at the January term of said court, 1923, charging appellant with having forged the name of his father, R. W. Branson, to a check, in violation of section 3428, R. S. 1919, for the payment of $ 20.

On January 23, 1923, appellant appeared before said court for arraignment, at which time and place he was accompanied by his father and mother, who were acting as his advisors. Upon being arraigned in open court, appellant entered a plea of guilty, and was then and there sentenced by the court, upon said plea of guilty, to a term of two years in the penitentiary. The sentence and judgment of the court were entered on the same day the plea of guilty was entered, to wit, January 23, 1923. On the 7th of February, 1923 following the sentence and judgment of the court, appellant, through his attorneys Gardner and Carroll, whose services appellant secured after pleading guilty, and after the judgment and sentence of the court had been rendered and pronounced, filed in said court a motion for a new trial, a motion in arrest of judgment, and a motion to set aside the judgment of the court and permit appellant to withdraw his plea of guilty and enter a plea of not guilty. On February 24, 1923, all of the above motions were taken up, considered by the court, and overruled, after which appellant filed affidavit for appeal, and an appeal was granted him to this court.

Opinion.

I. There is nothing for review here except the record proper in the case. It affirmatively appears from the record proper that on January 23, 1923, the following occurred:

'State of Missouri v. Claire D. Branson. No. C. 207. Forgery Second Degree. Now comes the prosecuting attorney, comes also the defendant Clare D. Branson, in person, and said defendant being arraigned before the court for plea, says he is guilty as charged, and the court fixes the punishment of said defendant at two (2) years, in the state penitentiary.

'It is therefore considered and adjudged by the court that said defendant Clare D. Branson, do undergo confinement in the penitentiary of the state of Missouri, for and during the period of two (2) years, for said offense of forgery second degree.

'That the state of Missouri, have and recover of and from said defendant all costs herein, and that execution issue therefore, and the court further orders that said defendant be remanded to the custody of the marshal of Jackson county, and that said marshal deliver said defendant into the custody of the proper officer in charge of said penitentiary therein to be confined as aforesaid.'

It is contended by counsel for respondent that has appellant's motion for a new trial, in arrest of judgment, and to set aside the judgment, were filed 15 days after the rendition of the judgment aforesaid, they cannot be considered by this court. Section 4079, R. S. 1919, reads as follows:

'The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if not, then before the end of the term, and shall be heard and determined in the same manner as motions for new trials in civil cases.' (Italics ours.)

The state cites, in support of above contention, the following authorities: State v. Benny (Mo. Sup.) 256 S.W. 461; State v. Keyger (Mo. Sup.) 253 S.W. 363; State v. Baird, 297 Mo. loc. cit. 226, 248 S.W. 596; State v. Whalen, 207 Mo. 241, 248 S.W. 931; State v. Sparks, 263 Mo. 609, 173 S.W. 1057; State v. Briscoe, 237 Mo. 154, 135 S.W. 58, 140 S.W. 885; State v. Standley, 232 Mo. 23, 132 S.W. 1122; State v. Riley, 228 Mo. 431, 128 S.W. 731; State v. Fraser, 220 Mo. 34, 119 S.W. 389; State v. Pritchett, 219 Mo. 696, 119 S.W. 386.

In all of the above cases, the respective defendants had been tried and convicted by juries, and we held that section 4079 supra, in that class of cases, was mandatory, in requiring motions for a new trial and in arrest of judgment to be filed before the judgment is rendered and sentence pronounced on defendant. The authorities in this state are likewise uniform in holding that the above statute is mandatory, in requiring the motion for a new trial, in above class of cases, to be filed within four days after the return of the verdict, or finding...