State v. Carel
| Decision Date | 23 February 1934 |
| Docket Number | 33383 |
| Citation | 69 S.W.2d 296 |
| Parties | STATE v. CAREL |
| Court | Missouri Supreme Court |
Roy McKittrick, Atty. Gen., and Olliver W. Nolen, Asst. Atty Gen., for the State.
COOLEY, Commissioner.
In the circuit court of Clark county defendant was charged by information with murder in the second degree for having assaulted and killed one Harvey Reed with an alleged dangerous and deadly weapon, to wit, a pair of pliers. Upon trial he was found guilty of manslaughter; his punishment being assessed by the jury at two years' imprisonment in the penitentiary. He filed timely motion for new trial, which was overruled, was then given allocution and duly sentenced in accordance with the verdict, and was granted an appeal to this court. He has filed no brief here.
We have before us for review only a transcript of the record proper. There is on file here what purports to be a copy of a bill of exceptions, or perhaps the original, but it does not have attached to it nor does it contain a certificate of the circuit clerk as to its authenticity or identifying it as part of the record. It is a separate document not included in the transcript certified by the clerk. That transcript does not show the filing of a bill of exceptions. It is certified by the circuit clerk under date of September 25, 1933. The clerk's certificate appears at the close of the transcript and is as follows: 'State of Missouri, County of Clark, ss.
'I Harry H. Lewis, Clerk of the Circuit Court for Clark County Missouri hereby certify the above and foregoing to be a true and complete copy of the record and proceedings in the above entitled cause including the filing of a motion for new trial, overruling of same, sentence and judgment, affidavit for appeal, granting of same as fully as the same remains of record and on file in my office.
'[Signed] Harry H. Lewis
From the files of the case here we learn this transcript reached our clerk on September 27, 1933, but was not then filed because the filing fee was not paid. On October 17, 1933 appellant filed here a motion asking leave to prosecute his appeal without payment of the filing fee. From that motion it. affirmatively appears that no bill of exceptions had yet been allowed and filed in the cause. The purported copy of the bill now on file here shows the instrument of which it seems to be a copy to have been signed by the trial judge on December 4, 1933. It was received and filed here December 5. It is clear therefore that it is not included and was not intended to be included as part of the 'copy of the record and proceedings' certified by the circuit clerk. We have repeatedly ruled that a purported bill of exceptions does not prove itself, and that, in the absence of a certificate of the circuit clerk as to its authenticity and correctness, we are...
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