State v. Clinkenbeard

• Decision Date: 14 February 1911
• Citation: 134 S.W. 537,232 Mo. 539
• Parties: STATE v. CLINKENBEARD.
• Court: Missouri Supreme Court

134 S.W. 537

232 Mo. 539

STATE v. CLINKENBEARD.

Supreme Court of Missouri, Division No. 2.

February 14, 1911.

1. COURTS (§ 231)—APPELLATE JURISDICTION —CASE CERTIFIED TO SUPREME COURT.

Under Const. Amend. 1884, § 6 (Ann. St. 1906, p. 244), when a case is certified to the Supreme Court for the reason that it is deemed to be in conflict with a former decision of this court, or of another court of appeals, the court must rehear and determine the same "as in case of jurisdiction obtained by ordinary appeal process."

2. CRIMINAL LAW (§ 1063)—APPEAL AND ERROR—MOTIONS FOR NEW TRIAL AND IN ARREST — MOTIONS AFTER SENTENCE— EFFECT.

Where defendant's motions for new trial and in arrest are filed after entry of judgment against him, without objection thereto or motion to set it aside, the motions are not filed in time, and do not preserve for review matters of exception appearing at the trial and saved in a purported bill of exceptions, and only the record proper is presented on appeal.

3. CRIMINAL LAW (§ 989)— TRIAL — JUDGMENT —NECESSITY FOR ALLOCUTION—MISDEMEANORS.

Rev. St. 1909, § 5263, entitles the defendant to be heard and to show cause before sentence why judgment should not be pronounced against him, and section 5264 provides that in cases of misdemeanors the requirement of section 5263 is directory, and that the omission to comply with it shall not invalidate the judgment. Held, that a sentence in a case of selling intoxicating liquors without a prescription (a misdemeanor) was not affected by the failure of the record to show an allocution.

Appeal from Circuit Court, Barton County; Argus Cox, Judge.

Joseph Clinkenbeard was convicted of selling intoxicating liquors without a prescription, and he appealed. Conviction affirmed by the Springfield Court of Appeals (142 Mo. App. 146, 125 S. W. 827), and cause certified to this court for its decision. Affirmed.

Cole, Burnett & Moore, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

KENNISH, P. J.

The defendant was convicted in the circuit court of Barton county upon the first count of an information which charged a sale of intoxicating liquors in violation of section 5781, Revised Statutes of 1909, of the law relating to druggists and pharmacists. His punishment was assessed at a fine of $225, and from the judgment he appealed to the Springfield Court of Appeals. In the latter court, at the October term, 1909, the judgment of the trial court was affirmed. 142 Mo. App. 146, 125 S. W. 827. In due time appellant filed a motion for a rehearing, which was overruled. Two of the judges deeming the decision rendered in said cause contrary to a previous decision of the St. Louis Court of Appeals, the court, of its own motion, at the same term, ordered the cause and the original transcript therein, certified and transferred to this court, in accordance with the provisions of section 6 of the amendment of 1884 of the Constitution of this state (Ann. St. 1906, p. 244), and the case thus comes before us for decision. When a case is thus certified to this court for the reason that it is deemed in conflict with a former decision of this court or of another Court of Appeals, it is not an open question in this court as to whether such conflict does in fact exist, but this court must rehear and determine the same "as in the case of jurisdiction obtained by ordinary appellate process." Section 6, amendment of 1884 to article 6, Const. Mo.; Clark v. M., K. & T. Ry. Co., 179 Mo. 66, 77 S. W. 882; State ex rel. v. Rombauer, 140 Mo. 121, 40 S. W. 763; Rodgers v. Insurance Co., 186 Mo. 248,...