State v. Brown

• Decision Date: 14 May 1907
• Citation: 103 S.W. 955,206 Mo. 501
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

103 S.W. 955

206 Mo. 501

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. CRIMINAL LAW — MOTIONS FOR NEW TRIAL AND IN ARREST — TIME FOR MAKING.

Motions for new trial and in arrest of judgment cannot be filed out of term time, because they are matters of record proper.

2. SAME — CONSTRUCTION OF STATUTORY PROVISIONS.

Rev. St. 1899, § 2689 [Ann. St. 1906, p. 1587], providing that a motion for a new trial shall be filed before judgment and within four days after the return of the verdict of finding of the court, and section 2692 [Ann. St. 1906, p. 1588], providing that a motion in arrest shall be filed within four days after the motion for a new trial shall have been determined, should be construed together with Rev. St. 1899, § 803 [Ann. St. 1906, p. 767], providing that all motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue, and, if not, then before the end of the term.

3. HOMICIDE — APPEAL — NECESSITY OF RULING ON MOTION FOR NEW TRIAL.

In a capital case, although a motion for a new trial was filed after the adjournment of court and the trial court had no power to consider it, the accused cannot be deprived of his right to have the ruling of the trial court reviewed, and the cause will be remanded for further trial.

Appeal from Criminal Court, Buchanan County; Alonzo D. Burnes, Special Judge.

Cassius W. Brown was convicted of murder in the first degree, and appeals. Reversed and remanded.

Muir & Griswold, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On the 1st day of November, 1905, in the criminal court of Buchanan county, the defendant was convicted of murder in the first degree, and his punishment fixed at death, under an information filed in said court by the prosecuting attorney of said county, charging the defendant with having, at said county, on the 23d day of November, 1904, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, killed and murdered Nancy Ann Gay by cutting her throat with a razor. After filing motions for a new trial and in arrest of judgment, which were overruled, defendant appealed.

It is asserted by the state that there is nothing before this court except the record proper, and, no error appearing in that, the judgment should be affirmed. The record discloses that the jury returned a verdict of guilty on November 1, 1905, the same being the thirty-seventh day of the special adjourned term, 1905, of the Buchanan criminal court. On the 2d day of November, 1905, said special adjourned term of court was adjourned until November 6, 1905, being the next regular term of said court. On the 8th day of November, 1905, being the second day of said regular term, counsel for defendant filed his motion for a new trial, which was more than four days after verdict, and the state insists that it was then out of time, or too late. It seems that Hon. A. D. Burnes, of the Fifth judicial circuit, was called in by Hon. B. J. Casteel, judge of the Buchanan county criminal court, to try, and that he did try, the case. The jury returned a verdict between 9 and 10 o'clock Wednesday night, November 1st. Next morning Judge Casteel took the bench, and, being erroneously informed that counsel for defendant did not wish to file motion for new trial, he adjourned the court for the term.

Defendant contends that under the law he was entitled to four workdays after verdict in which to file his motion for a new trial, and that he could not be deprived of that right by the adjournment of the court before the expiration of such time limit. There can be no question of Judge Casteel's authority to adjourn the court when he did; but the effect of the order of adjournment was to deprive the defendant of the opportunity and right to file his motion for new trial and to have it passed upon by Judge Burnes. Prior to the revision of 1879, motions for new trial and in arrest, in both civil and criminal cases, were governed by one section of the statute; i.e., section 6, c. 172, Gen. St. Mo. 1865 (section 803, Rev. St. 1899 [Ann. St. 1906, p. 767]), which reads as follows: "All motions for new trials, and in arrest of judgment, shall be made within four days after the trial, if the term shall so long continue, and if not, then before the end of the term." By section 18, c. 213, Gen. St. Mo. 1866, it is provided that "verdicts may be set aside, and new trials awarded, on the application of the defendant * * * for like causes and under the like circumstances as in civil cases." So that, as stated, motions for new trial and in arrest, in both criminal and civil cases, were governed by the same section of the statutes (State v. Marshall, 36 Mo. 400); and, so far as civil cases are concerned, the statute (section 803, supra) has remained unchanged. But in the Revised Statutes of 1879 there were incorporated two new sections in regard to motions for new trial and in arrest in criminal cases, to wit, sections 1967 and 1970, corresponding to sections 2689, 2692, Rev. St. 1899 [Ann. St. 1906, pp. 1587, 1588]. They are as follows:

"Sec. 2689. The motion for a new trial shall be in writing, and must set...