State v. Crites

• Decision Date: 15 December 1908
• Parties: STATE v. CRITES.
• Court: Missouri Supreme Court

114 S.W. 618

215 Mo. 91

STATE v. CRITES.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. CRIMINAL LAW (§ 1124)—APPEAL AND ERROR —QUESTIONS PRESENTED FOR REVIEW— GROUNDS FOR NEW TRIAL.

A bill of exceptions did not contain the motion for a new trial, nor did it show that an exception was saved to the order overruling the motion; but below the signature of the judge to the bill there was copied what purported to be the motion for a new trial. Held, that there was nothing before the court on appeal for review except the record proper, as, in order that the court may pass upon matters of exception occurring during the trial, it is absolutely necessary that they be preserved in the motion for a new trial, and that the action of the court in overruling the motion be excepted to, and the exceptions saved and preserved by bill of exceptions.

2. CRIMINAL LAW (§ 1110)—BILL OF EXCEPTIONS —CURING DEFECT.

After a case was submitted on appeal, in which the bill of exceptions was defective for not incorporating in it the motion for a new trial and the exception to the order overruling the motion, the defect is not cured by filing a certified copy of the judgment, affidavit for appeal, order allowing appeal to the Supreme Court, and order extending time for filing bill of exceptions.

Appeal from Criminal Court, Buchanan County; Ben. J. Casteel, Judge.

Elmer Crites was convicted of grand larceny, and appeals. Affirmed.

Duncan & Utz, for appellant. Herbert S. Hadley, Atty. Gen., and Frank Blake, Asst. Atty. Gen., for the State.

BURGESS, J.

On July 13, 1906, the prosecuting attorney of Buchanan county filed an information in the criminal court of said county, charging the defendant and F. R. Osborn, Lee Stanford, and J. J. Hayes, alias Red Hayes, with unlawfully, feloniously, and burglariously breaking into and entering a railroad car of the St. Joseph & Grand Island Railway Company and stealing therefrom seven tubs of butter, the property of said company, of the value of $95.55. At the March term, 1907, of said court, a severance having been granted, the defendant, upon trial had, was convicted of grand larceny, and his punishment assessed at four years in the penitentiary. He appeals.

The motion for a new trial is not incorporated in the bill of exceptions filed in this case, nor does the bill show that an exception was saved to the action of the court in overruling the motion. It is true that, after the bill is signed by the judge of the...