State v. Dimmick

• Decision Date: 28 September 1932
• Docket Number: No. 31365.,31365.
• Citation: 53 S.W.2d 262
• Parties: THE STATE v. CHARLES D. DIMMICK, Plaintiff in Error.
• Court: Missouri Supreme Court

53 S.W.2d 262

THE STATE v. CHARLES D. DIMMICK, Plaintiff in Error.

No. 31365.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from Nodaway Circuit Court. — Hon. D.D. Reeves, Judge.

AFFIRMED.

Earl C. Borchers for plaintiff in error.

(1) Writ of error is a new and a separate and distinct cause of action rather than a continuation of the old. 3 C.J. p. 304, par. 12; Turner v. Edmonston, 210 Mo. 411; Missouri Securities Corp. v. Morris Wentworth Bank, 24 S.W. (2d) 704. (2) Writ of error is a common-law writ, is a writ of right and is preserved by the statutes. 3 C.J. pp. 300-301, par. 5. (3) Writ of error being a new and independent cause of action and being a writ of right, secures to defendant the right to have all errors committed in his trial reviewed by the proper appellate tribunal. 34 C.J. p. 303, par. 10; State v. Thayer, 158 Mo. 40; 3 C.J. p. 306; 1 Vt. 14, 17. (4) The Circuit Court of Nodaway County never acquired jurisdiction of the cause: (a) The court erred in sending cause to Nodaway County, a county in the fifth judicial circuit when there was a county in the fourth judicial circuit not subject to the objections urged in defendant's application for change of venue. Art. II, sec. 22, Const. of Mo.; Secs. 3626, 3628, 3629, 3630, R.S. 1929; State v. Gamble, 115 Mo. 427; State v. Steen, 115 Mo. 474; State ex rel. v. Wofford, 119 Mo. 408; State v. Witherspoon, 231 Mo. 706; State v. Dyer, 314 Mo. 608; State v. Bradford, 314 Mo. 684; State v. Pool, 314 Mo. 673. (b) Defendant must and did except to erroneous award of venue in court where change is and was granted. State v. Lynn, 169 Mo. 671. (c) The record shows no facts or proof of facts to sustain order transferring case to another circuit. (d) Change of venue is a right given to defendant only, but can be granted only upon proof of necessary facts furnished by him and upon his application. A change ordered without or beyond his application and over his objection is void and conveys no jurisdiction. Art. II, sec. 22, Const. of Mo. (and other cases cited above). (5) The verdict in this case as altered by the trial judge is void. (a) Amendment by trial judge in open court not in conformity with practice. State v. Sartino, 216 Mo. 408.

Stratton Shartel, Attorney-General and Edward G. Robison, Assistant Attorney-General, for defendant in error.

(1) The information is in proper form. The record discloses that defendant was duly arraigned, a jury properly chosen and sworn, the cause tried according to orderly and proper procedure, a verdict of guilty returned and defendant duly sentenced in accordance therewith. No motion for new trial being filed and there being no bill of exceptions and the record proper being in regular form, the judgment must be affirmed. State v. Miller, 209 Mo. 389; State v. Anderson, 228 Mo. 441; State v. Halliday, 311 Mo. 474. (2) In the absence of a motion for new trial and bill of exceptions, the court's ruling on application for change of venue, motion to quash, instructions, application for change of venue or continuance or adverse ruling on the evidence are not preserved for review. State v. Gamble, 119 Mo. 430; State v. Taylor, 132 Mo. 286; State v. Glasscock, 232 Mo. 291; State v. Bishop, 231 Mo. 416; State v. Brannan, 206 Mo. 639; State v. Nave, 185 Mo. 134. However, the court's action in awarding a change of venue to another circuit, under the application and supporting affidavit in the case was proper. Sec. 3630, R.S. 1929; State v. Smith, 281 S.W. 38; State v. Dyer, 314 Mo. 611. Defendant also appeared in Nodaway court, agreed to continuance, and joined issue, without any objections to jurisdiction. State v. Hoffman, 257 S.W. 129.

ELLISON, J.

The plaintiff in error, whom we shall for convenience call the defendant, was convicted by a jury of first degree murder in the Circuit Court of Nodaway County, on change of venue from Andrew County, and his punishment assessed at life imprisonment in the penitentiary. The specific charge was that he killed his wife, Abbie Dimmick, by beating her with a rock. He filed no motion for a new trial, no bill of exceptions and took no appeal; but within one year after judgment and sentence brought the record here for examination by writ of error.

In his brief defendant makes a preliminary contention that a writ of error, "being a writ of right, secures to defendant the right to have all errors committed in his trial reviewed by the proper appellate tribunal" — meaning the whole record should be scrutinized, including matters of exception. On this theory, before the oral argument he filed written Suggestions of Diminution of Record asking this court to require the clerk of the circuit court to send up the original verdict and to make out, certify and transmit a bill of exceptions. This motion was sustained as to the verdict and by agreement he filed written Suggestions of Diminution of Record asking was denied as to the bill of exceptions. Nevertheless certain matters of exception do appear in the record already here, among which are the defendant's application for a change of venue with the trial court's order sustaining the same and the defendant's exceptions thereto. There is nothing in the record concerning the verdict beyond the usual formal recitals — nothing to show it was amended by interlineation, or that defendant objected and excepted. But the photostatic copy of the verdict does show interlineations.

Based on his aforesaid preliminary contention and the foregoing facts, the defendant assigns error on the part of the trial court: (1) in sending the cause from Andrew County to Nodaway County in a different judicial circuit: (2) and in the interlineation of the verdict. The Attorney-General contends the proceedings to which both of these assignments are addressed were matters of exception, and that neither point is properly before this court because not preserved by the filing of a motion for new trial and bill of exceptions below. As to the verdict it is further asserted there is nothing in the record disclosing the facts and circumstances attending the interlineation.

No error is apparent on the face of the record proper. It shows a valid information filed; that there was a waiver of formal arraignment and plea of not guilty; that the trial proceeded on the information, the defendant being present and the jury duly impaneled and sworn; that a verdict was returned in form complying with the law, the defendant granted allocution, and judgment and sentence pronounced. The only questions for decision are the three points presented in defendant's brief: whether the scope of our review extends to the two assignments urged; and if it does, whether either should be sustained.

I. The defendant has cited two or three authorities but none of them sustains his contention that a writ of error brings up matters of exception without a bill of exceptions. We have been unable to find any — anywhere. If defendant is correct there is no need for bills of exception. And as said in Grover Irrig. & L. Co. v. Lovella Ditch, R. & I. Co., 21 Wyo. 204, 131 Pac. 43, Ann. Cas. 1915 D, 1207, 1208, L.R.A. 1916 C, 1275, 1278, "the only reason for allowing or providing for a bill of exceptions was that the ruling excepted to could not otherwise appear upon the record."

[1, 2] The writ comes to us from the common law. Until recent times in England it furnished the only means of removing records in criminal cases to higher courts for review. [26 Standard Ency. of Proceed, p. 615.] Bills of exceptions have been authorized in England since the enactment of the statute of 2 Westminster, 13 Edw. 1, chap. 31, in 1285. But while thereafter allowed in misdemeanor cases ex gratia, it has been doubted whether the statute extended to criminal cases. [2 Tidd's Practice, p. 863.] Many authorities say flatly it applied only to civil and not to criminal proceedings. [2 R.C.L. sec. 113, p. 140; Freeman v. People, 4 Denio (N.Y.) 9, 47 Am. Dec. 216, 220; State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, 114; State v. Sorrentino, 31 Wyo. 129, 224 Pac. 420; 34 A.L.R. 1477, 1485.] At any rate, it is agreed by all the courts that a writ of error reached only errors apparent on the face of the record proper in the absence of a bill of exceptions. See authorities, supra, and Hopkins v. Commonwealth, 50 Pa. St. 9, 88 Am. Dec. 518, 520; Wheeler v. Winn, 53 Pa. St. 122, 91 Am. Dec. 186, 187; 7 Ency. Pl. & Pr. p. 847.

The common law and general statutes of England as in force 4th James 1 were adopted in this State in 1816, Lindell v. McNeir, 4 Mo. 380, 382. At that time and until 1835 there was no right of appeal in criminal cases. [State v. Thayer, 158 Mo. 36, 39 et seq., 58 S.W. 12, 25.] They were taken up by writ of error, as in England. Neither, until 1835, did our statutes provide for bills of exceptions save in civil cases, 1 Laws 1825, pp. 314 to 323; 2 Laws 1825, p. 631, sec. 39; R.S. 1835, p. 491, sec. 23 (now Sec. 3695, R.S. 1929). But for a time the practice seems to have been unsettled. In at least three of the earliest decisions in criminal cases the fact is mentioned in the opinions that the records had been brought up by bill of exceptions: Calloway v. State, 1 Mo. 212; State v. Douglas, 1 Mo. 527; King v. State, 1 Mo. 717. Several others were decided on matters of exception, in particular. Jim (a slave) v. State, 3 Mo. 147, 159, where a murder case was reversed and remanded for failure to grant a change of venue.

But in State v. Henry (a slave), 2 Mo. 218, the court said a bill of exceptions does not lie in a criminal case either at common law or under the statute; and in Mitchell v. State, 3 Mo. 283, it was ruled that while a writ of error could be had in a capital case, the plaintiff in error was not entitled to a bill of exceptions. The argument for the writ, as reported in the opinion, was almost a counterpart of what has been presented in the instant case. The court said: "It is...