State v. Culbertson

• Decision Date: 19 February 1930
• Docket Number: No. 30133.,30133.
• Citation: 24 S.W.2d 980
• Parties: STATE v. CULBERTSON.
• Court: Missouri Supreme Court

24 S.W.2d 980

STATE v. CULBERTSON.

No. 30133.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from Circuit Court, Dunklin County.

George Culbertson was convicted of manslaughter, and he appeals.

Affirmed.

Stratton Shartel, Atty. Gen. (G. C. Weatherby, of Kansas City, of counsel), for the State.

BLAIR, P. J.

Appellant was charged with the crime of murder in the first degree for the killing of Henry James, in Dunklin county, on February 9, 1920. The jury found him guilty of manslaughter, but was unable to agree upon the punishment, and the same was by the trial judge fixed at imprisonment in the state penitentiary for a term of two years. From the judgment thereafter rendered, an appeal was granted to this court.

The record discloses that appellant filed his motion for new trial and that the same was overruled; but said motion has not been incorporated in the bill of exceptions, where the same should properly be lodged. It was not even copied into the transcript of the proceedings, where the action of the court thereon properly appears and where some of our circuit clerks improperly incorporate said motion.

The errors alleged to have been committed by the trial court cannot be considered upon appeal unless called to the attention of the trial court in a timely motion for new trial. State v. Baker (Mo. Sup.) 274 S. W. 359; State v. Caulder, 301 Mo. 276, 256 S. W. 1063; State v. Sparks, 263 Mo. 609, 173 S. W. 1057.

Even inclusion in the bill of exceptions of the motion for new trial, with the recital of the action of the court thereon, is not sufficient. Unless the bill of exceptions shows that appellant excepted to the order of the trial court in overruling the motion for new trial, there is nothing for review upon appeal except the record proper. State v. Harvey, 105 Mo. 316, 16 S. W. 886; State v. Hunter, 152 Mo. 569, 54 S. W. 442; State v. Dunham, 178 Mo. 1, 76 S. W. 1008; State v. Arrowood (Mo. Sup.) 11 S.W.(2d) 1015, and cases cited. Not only does the bill of exceptions fail to set out the motion for new trial, but it does not even recite that such a motion was filed.

On December 31, 1929, appellant filed his motion in this court suggesting diminution of the record because of the failure of the clerk of the circuit court of Dunklin county to attach to the bill of exceptions the order of the trial judge approving such bill of exceptions and authorizing and requiring the same to be made a part of the record. Said motion also asked that the case be continued to the next term of this court. To said motion was attached a copy of the omitted order, duly certified by the clerk of the circuit court of Dunklin county. On the day before the case was set for hearing, the motion was sustained to the extent of supplying the omission referred to therein and the certified copy was made a part of the record in the case.

As no ground for continuance was stated in the motion, our clerk was directed to advise counsel for appellant by telegraph that the court could not pass upon the request for continuance, as no grounds therefor were stated in the motion. Appellant's counsel thereupon telegraphed our clerk as follows: "If clerk's certificate attached to our motion completes the record no reason to continue." Accordingly, when the case was reached on the call the next morning, it was submitted for the preparation of an opinion without argument. The appellant was given ten days within which to file a brief. Of this leave he has not availed himself.

Section 4103, R. S. 1919, is as follows: "When the appeal or writ of error does not operate as a stay of proceedings, such transcript...