State v. Brown

• Decision Date: 03 June 1912
• Citation: 147 S.W. 1134
• Parties: STATE v. BROWN.
• Court: Missouri Court of Appeals

147 S.W. 1134

STATE v. BROWN.

Springfield Court of Appeals. Missouri.

June 3, 1912.

1. CRIMINAL LAW (§ 1092) — APPEAL — BILL OF EXCEPTIONS — SIGNATURE.

Under Rev. St. 1909, § 2028, requiring a bill of exception to be signed, and section 5245, providing that the same rules as in civil cases shall apply to bills of exceptions in criminal prosecutions, and in view of sections 2030 and 2031, respectively, providing that, if a judge refuse to sign it as untrue, he shall certify thereon under his hand the cause for such refusal, and that a bystanders' bill may be had in case of the refusal of the judge, an unsigned bill of exceptions in a criminal case is a nullity, and presents nothing for review.

2. CRIMINAL LAW (§ 1090) — APPEAL — BILL OF EXCEPTIONS — BRIEF.

Rev. St. 1909, § 5312, providing that no assignment of error or joinder of error shall be necessary on any appeal or writ of error in a criminal case, but that the court shall enter judgment on the record before them, the Appellate Court is, where only the record proper is before it, no bill of exceptions having been presented, required to examine the record proper.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Frank Brown was convicted of having violated the local option law, and he appeals. Affirmed.

NIXON, P. J.

Defendant was tried and convicted in the circuit court of Christian county charged with having violated the local option law alleged to be in force in said county, and his punishment was assessed at a fine of $400. Defendant has appealed. The case was submitted to this court upon the record and what purports to be a bill of exceptions. The bill of exceptions was never signed by the judge of the court in which the case was tried, and stands in this court wholly unauthenticated in this respect. Sections 2028, 5245, R. S. 1909, require that the bill of exceptions be signed, and section 2030, R. S. 1909, provides that, if the judge refuse to sign the bill on the ground that it is untrue, he shall certify thereon under his hand the cause for such refusal, and the succeeding section provides how the bill may be signed by bystanders. A bill of exceptions not signed at all is a nullity. Smith v. Railway, 55 Mo. 601; Klotz v. Perteet, 101 Mo. 213, 13 S. W. 955; Garth v. Caldwell, 72 Mo. 622; Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808; Roberts v. Jones, 148 Mo. 368, 49 S. W. 985.

There is nothing before us, therefore, except the record proper which we have...