State v. Cole

• Citation: 273 S.W. 1037
• Decision Date: 05 June 1925
• Docket Number: No. 26157.,26157.
• Parties: STATE v. COLE.
• Court: Missouri Supreme Court

273 S.W. 1037

STATE v. COLE.

No. 26157.

Supreme Court of Missouri, Division No. 2.

June 5, 1925.

Appeal from Circuit Court, Dunklin County W. S. C. Walker, Judge.

Delzie Cole was convicted of an assault with intent to kill, and he appeals. Affirmed.

Robert W. Otto, Atty. Gen. (Will F. Frank, of Kirksville, of counsel), for the State.

HIGBEE, C.

The appellant was convicted of a felonious assault with intent to kill and sentenced to imprisonment in the penitentiary for a term of two years.

The Attorney General moves to affirm the judgment for the reason that there is no record entry showing that the purported bill of exceptions was allowed, signed by the judge of the court, and ordered to be filed and made a part of the record. The record relative to the filing of the bill reads:

"Comes now the defendant by his attorney, and files herein his bill of exceptions, and asks that the same be made a part of the record in this cause, and that the same be properly certified to the Supreme Court."

There is nothing in this entry to show that the judge of the court allowed or signed the bill of exceptions, or that the court ordered that it be filed. In Harris v. Wilson, 199 Mo. 412, 414, 97 S. W. 591, the abstract of the record recited:

"In due time the defendants filed their bill of exceptions, which was allowed, signed, sealed, and filed."

On page 415 (97 S. W. 591), Judge Graves said:

"It shows that a purported bill of exceptions was allowed, signed, sealed, and filed, but by whom signed and sealed, and by whose order filed, or whether filed by order of record, does not appear."

In Novinger v. Railroad, 131 Mo. App. 337, 111 S. W. 515, the court said:

"The respondents in their brief and argument call our attention to the fact that the abstract in the case fails to show that a proper bill of exceptions was filed in the case. The recital of the abstract is as follows: `On the 5th day "of November, 1907, during October term, the defendant filed in court his signed bill of exceptions as follows.' Then follows the purported bill of exceptions. This was not sufficient. It is essential that the abstract should show that the bill was filed by a proper order of court duly entered of record. Clay v. Publishing Co., 200 Mo. loc. cit. 673 . It is also essential that it should show that the bill was signed by the judge. Harris v. Wilson, 199 Mo. 412 . As there is no showing that the bill was filed in obedience to any order of the court duly entered upon the records, or that it was signed by the judge it does not comply with the law governing the filing of abstracts. Consequently we have nothing before us but the record proper. This shows that there was a petition stating a good cause of action."

See, also, Parkey v. Reese, 142 Mo....