State v. Daily

• Decision Date: 05 May 1930
• Docket Number: No. 16856.,16856.
• Citation: 27 S.W.2d 753
• Parties: STATE v. DAILY.
• Court: Missouri Court of Appeals

27 S.W.2d 753

STATE v. DAILY.

No. 16856.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Error to Circuit Court, Grundy County; L. B. Woods, Judge.

John F. Daily was convicted of an offense, and he brings error.

Writ of error dismissed.

Scott J. Miller, of Chillicothe, for plaintiff in error.

Ray Mabee, Pros. Atty., of Unionville, for defendant in error.

BOYER, C.

Plaintiff in error, defendant below, sued out a writ of error from this court and obtained the issuance thereof on the 14th day of March, 1929, directed to the judge of the Third judicial circuit commanding that the record and proceedings in the aforesaid cause be certified to this court at the October 1929 term thereof. The clerk of the court certified to "a transcript of the record and proceedings," which includes and shows only that a transcript in change of venue from Putnam county was filed in the office of the clerk of the circuit court in and for Grundy county, July 13, 1927; that on February 28, 1928, a jury was called, charged, and sworn to try the case; a verdict of guilty assessing punishment at $25; and on February 29, 1928, at the regular February term of the Grundy county circuit court, motion for new trial was filed, and on November 14, 1928, during the regular November 1928 term of said circuit court, defendant's motion for new trial was overruled. The above and foregoing, together with a copy of the motion for new trial, is all of the information furnished by the purported transcript. There is no showing of the information upon which defendant was tried, and no showing that any judgment was entered against defendant upon the verdict returned by the jury. Service of notice of the writ was acknowledged by the prosecuting attorney of Putnam county, August 30, 1929.

Opinion.

In the case of State v. Rosenblatt, 185 Mo. 114, loc. cit. 117, 83 S. W. 975, 976, it is said: "Writs of error under our statute and practice can only be prosecuted from final judgments. Section 2697, Rev. St. 1899."

The statute then in effect and referred to by the court was the same as section 4087, R. S. 1919. This section read in conjunction with the preceding one makes it evident that "a final judgment" is a necessary prerequisite for the maintenance of a writ of error. From the transcript before us, it does not appear that any final judgment was rendered. All that appears is that there was a trial, verdict of the jury, motion for new trial filed and overruled. There is no intimation that any judgment was ever entered upon the verdict.

In view of the foregoing, what standing has plaintiff in error upon the record in this court? It is evident that plaintiff in error has not presented to this court a sufficient transcript to review the case even upon the record proper. No other or further paper has been filed in this case than that above described. No attempt has been made to assign error or to furnish brief. The case is here merely upon the meager transcript mentioned. There is no motion or suggestion for relief on account of its being incorrect or incomplete.

In an appeal defendant is required to present at least a sufficient transcript to bring in the case upon the record proper, otherwise there is nothing to review and the appeal would be dismissed. In a case of final judgment a short form transcript is not sufficient, but a full transcript is required. State v. McCowan (Mo. Sup.) 14 S.W.(2d) 558; State v. Carr, 216 Mo. App. 432, 441, 270 S. W. 121.

Appeals in criminal cases are perfected in the manner described in sections 4102 and 4103, R. S. 1919. These sections provide what character of transcript shall be filed, and while it is said to be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the case, including the bill of exceptions, judgment, and sentence, and certify and return the same, it has been held that appellant cannot shift this duty to the clerk alone, but must see that a proper transcript is filed. State v. Piersol (Mo. Sup....