State v. Briscoe
| Decision Date | 14 November 1911 |
| Citation | 237 Mo. 154,140 S.W. 885 |
| Parties | STATE v. BRISCOE. |
| Court | Missouri Supreme Court |
This case has been fully considered again upon a rehearing, with the result that we are constrained to adhere to the opinion heretofore delivered (135 S. W. 58), sustaining the motion of the Attorney General to transfer the cause to the St. Louis Court of Appeals.
The question is not whether this court will as a matter of discretion hear and determine this case upon its merits, but, rather, has the court authority to entertain appellate jurisdiction thereof. The Constitution fixes the appellate jurisdiction of this court, and in a given case the record alone must determine whether jurisdiction on appeal is in this court or the Court of Appeals. It is admitted that this court is without jurisdiction in this case, unless a constitutional question was preserved for decision. Appellant seeks to meet this requirement by reliance upon an amended demurrer, a motion for a new trial, and a motion in arrest of judgment, each of which presents a constitutional question, and, if either is properly a part of the record which this court is authorized to consider, then there is no doubt as to our jurisdiction of the appeal. However, as shown in the opinion herein, the amended demurrer was filed after a plea of not guilty had been entered; the plea not having been withdrawn. Under the ruling of this court in the case of State v. Earll, 225 Mo. 537, 125 S. W. 467, the demurrer thus filed cannot be considered. That leaves the motions for new trial and in arrest. The record explicitly shows that these motions were not filed until after final judgment and sentence had been pronounced, and under both the express provisions of the statute and the decisions of this court, such motions must be filed before judgment, or they cannot be considered as a part of the record in the cause.
In the conclusion reached we have not overlooked the case of State v. Carson, 231 Mo. 1, 132 S. W. 587. That case is distinguishable from the case in hand, in that defendant Carson did not assent to judgment being pronounced before the filing of the motion for a new trial, but, on the contrary, objected and notified ...
To continue reading
Request your trial
-
Bingaman v. Hannah
...estate mentioned in the pleadings will be directly affected by the judgment or decree to be rendered in the cause." And in State v. Brisco, 237 Mo. 154, 135 S.W. 58, 140 885: "The Constitution fixes the appellate jurisdiction of this court, and in a given case the record alone must determin......
-
State v. Baird
...228 Mo. 431, 128 S. W. 731; State v. Sparks, 263 Mo. 609, 173 S. W. 1057; State v. Nistendirk (Mo. App.) 204 S. W. 1111; State v. Briscoe, 237 Mo. 154, 135 S. W. 58, 140 S. W. 885; State v. Thomas, 232 Mo. 216, 134 S. W. In State v. Sparks, the court says: "When the record, as in this case,......
-
State v. Branson
... ... 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 ... ...
-
State v. Dunnegan
...219 Mo. 696, 119 S. W. 386; State v. Kile, 231 Mo. 59, 132 S. W. 230; State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975; State v. Briscoe, 237 Mo. 154, 135 S. W. 58, 140 S. W. 885. It therefore follows that only the record proper is before us for review. State v. Kile, supra; State v. Fraser, ......