State v. Cantrell, 37284.

• Decision Date: 10 September 1940
• Docket Number: No. 37284.,37284.
• Citation: 142 S.W.2d 1057
• Parties: THE STATE v. FRANK CANTRELL, Appellant.
• Court: Missouri Supreme Court

142 S.W.2d 1057

THE STATE v. FRANK CANTRELL, Appellant.

No. 37284.

Supreme Court of Missouri.

Division Two, September 10, 1940.

Appeal from Polk Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

Roy McKittrick, Attorney General, and Ernest Hubbell, Assistant Attorney General, for respondent.

(1) Only record proper can be reviewed in the absence of a bill of exceptions. State v. Carel, 69 S.W. (2d) 296; State v. Tribbey, 50 S.W. (2d) 1018. (2) The information charges assault with intent to kill, and is sufficient in form and substance. Sec. 4014, R.S. 1929; State v. Pool, 285 S.W. 727; State v. Schmittzehe, 3 S.W. 238; State v. Barton, 142 Mo. 453, 44 S.W. 239; State v. Bowles, 146 Mo. 13, 47 S.W. 893; People v. Mulhern, 35 Pac. (2d) 176, 140 Cal. App. 212. (3) The verdict is responsive to the information, and the assessment of joint punishment by the verdict is not reversible error in this case. State v. Bliss, 80 S.W. (2d) 164; Sec. 3702, R.S. 1929; State v. Moon, 283 S.W. 470, 221 Mo. App. 592; Sec. 3704, R.S. 1929; State v. Carrol, 232 S.W. 703, 288 Mo. 408.

COOLEY, C.

Defendant was convicted, upon trial to a jury, of the crime of felonious assault with intent to kill, was sentenced to two years' imprisonment in the penitentiary, and has appealed. He has filed no brief in this court. [1] He filed no bill of exceptions in the trial court. The clerk of that court has sent to this court what purport to be copies of a motion for new trial, instructions and other papers said to be on file in his office, but these we cannot consider. They are not parts of the record proper and, unless made part of the record by being preserved by a properly authenticated and filed bill of exceptions, are not before us for review. [State v. Hembree (Mo.), 37 S.W. (2d) 448; State v. Bliss (Mo.), 80 S.W. (2d) 162 and cases cited.] We have for review therefore only the record proper. The only thing in that record that calls for particular mention is the verdict. The verdict being part of the record proper we must notice it.

[2] Defendant Cantrell and two others, Hobart Jones and Ival Hanna, were charged jointly, by information, with the alleged felonious assault. They were tried together and the jury returned the following verdict:

"We, the Jury, find the defendants Hobart Jones and Frank Cantrell guilty as charged of felonious assault, and assess their punishment at Two years in the penitentiary and we find the defendant Ival Hanna guilty as charged of felonious assault, and assess his punishment at Twelve months in Jail."

Sec. 3702, R.S. 1929, Mo. Stat. Ann., p. 3258, provides that when several defendants were jointly tried the punishment of each, in case of conviction, must be assessed separately. Sec. 3704, R.S. 1929, Mo. Stat. Ann., p. 3259, provides in substance that if the jury agree upon a verdict of guilty but fail to agree upon the punishment to be assessed or do not declare the punishment by their verdict, the court shall assess and declare the punishment and render judgment accordingly. (Other provisions of that section are not here pertinent.)

In State v. Carroll, 288 Mo. 392, 232 S.W. 699, we had before us a verdict similar in the respect now under consideration to the verdict in the instant case. Discussing present Sections 3702 and 3704, supra (then under different section numbers), the court said that what is now Sec. 3702 had been held mandatory and that "the assessment of a joint punishment is no assessment at all." But the court referred to what is now Sec. 3704, supra, and said that when the jury does not assess a punishment or assesses a punishment not authorized by law "The court shall assess and declare the punishment," (citing and quoting from prior decisions of this court).

In the Carrol case it is in effect held that if the trial court had fixed the punishment and sentenced the defendants accordingly, the sentences would have been good. We said, citing cases, 288 Mo. 392, 232 S.W. l.c. 703:

"It is held that, where a jury renders a verdict such as rendered in this case, fixing a joint punishment for crime against several defendants, the error may be corrected if the trial court, in pronouncing the sentence and judgment against the defendant, assesses separately their punishments."

However, in the Carroll case, the trial court did not so fix the punishments and sentence the defendants separately, and the cause was remanded with directions to the trial court to bring the defendants before it and to "assess and declare the punishment of each of said defendants, separately; and otherwise to proceed in the cause as required by law." [Note, there was no direction for a new trial.]

The Carroll case was followed by this Division in State v. Bliss, supra, where, also,...