State v. Corey

• Decision Date: 23 February 1934
• Docket Number: No. 33190.,33190.
• Citation: 69 S.W.2d 297
• Court: Missouri Supreme Court
• Parties: STATE v. COREY.

69 S.W.2d 297

STATE v. COREY.

No. 33190.

Supreme Court of Missouri, Division No. 2.

February 23, 1934.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

Ed. Corey was convicted under an information charging burglary and larceny, and he appeals.

Affirmed.

Roy Coyne, of Joplin, for appellant.

Roy McKittrick, Atty. Gen., and Wm. Orr Sawyers, Asst. Atty. Gen., for the State.

LEEDY, Judge.

At the April, 1933, term of the Jasper county circuit court, Ed. Corey, the appellant, was convicted under an information charging him with burglary and larceny, and was sentenced to a term of four years in the penitentiary, from which he appeals.

The transcript of the record, authenticated by the certificate of the clerk bearing date May 9, 1933, does not include or refer to a copy of the bill of exceptions, as contemplated by section 3756, R. S. 1929 (Mo. St. Ann. section 3756, p. 3292). However, there was filed in this court on December 28, 1933, what appears to be the original bill of exceptions, which, from the certificate of the trial judge, seems to have been approved, signed, and sealed on August 19, 1933, a date subsequent to the filing of the original transcript in this court. There is no certificate of the clerk of the court below as to its authenticity, nor indeed is it accompanied by a certificate of any character by that officer. It does not appear from the instrument itself that it was ever filed in the circuit court, nor does the duly certified transcript of the record show any entry relating to the filing of the bill of exceptions.

It has repeatedly been held that a purported bill of exceptions does not prove itself, and, in the absence of the clerk's certificate authenticating it, we are precluded from considering it, or passing on matters of exception preserved, or the merits of the case. State v. Brown, 312 Mo. 340, 279 S. W. 98; State v. Kelsay (Mo. Sup.) 18 S.W.(2d) 491; State v. Harbeston, 330 Mo. 799, 51 S.W.(2d) 533; State v. Thomas (Mo. Sup.) 53 S.W.(2d) 266. See, also, State v. Ross (Mo. Sup.) 69 S.W.(2d) 293, and State v. Carel (Mo. Sup.) 69 S.W.(2d) 296, concurrently decided herewith, and not yet published [in State report], wherein this precise question of procedure was again before this court and determined at this term.

Appellant has filed no brief in this court, but the case was submitted without argument on the brief of the state on the 2d day of the January, 1934, call. The learned Assistant Attorney General who had charge of the case did not brief it on the merits, but, relying on a long, unbroken line of cases, asserted the proposition that there was nothing before the court for review except the record proper. In this he was manifestly correct. An opinion was written and circulated which adopted that view, and affirmed the judgment. Thereafter, and before the opinion was voted on, there was filed on behalf of appellant an affidavit, in the nature of a motion suggesting diminution of record, in that the circuit clerk "through error, has failed to certify that said bill of exceptions is a true and complete copy." It does not appear from the motion, or otherwise, that any notice of the filing thereof was served upon the adverse party, as required by our rule No. 2.

Under the statute (Mo. St. Ann. § 3757, p. 3295) which provides "when the appeal or writ of error does not operate as a stay of proceedings, such transcript (on appeal) shall be made out, certified and returned, on the application of the appellant or plaintiff in error, as in civil cases," it has been held that, "it is the duty of the appellant of his attorney, to examine the abstract of the record to determine whether all essential matters are included therein, and appellant is responsible therefor, as in civil cases. * * * Appellant must file or see to it that a full and complete transcript of the record is filed. State v. Conners, 258 Mo. 330, 167 S. W. 429. If there is anything lacking therein, the appellant or his attorney timely may...