State v. Eaton

• Citation: 89 S.W. 949,191 Mo. 151
• Parties: STATE v. EATON.
• Decision Date: 21 November 1905
• Court: United States State Supreme Court of Missouri

89 S.W. 949

191 Mo. 151

STATE v. EATON.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. CRIMINAL LAW — APPEAL — RECORDS—CORRECTION OF ERRORS BY SUPREME COURT.

The Supreme Court on appeal has no authority to correct an error in the record of the circuit court, arising from the fact that it recites that an order extending the time for the filing of a bill of exceptions was made after the expiration of the time fixed by a former order, when it was in fact made prior to such time.

2. SAME — BILL OF EXCEPTIONS — FILING — EXTENSION OF TIME.

The record in a criminal case recited that an order extending the time for filing a bill of exceptions was filed in vacation on a certain date after the expiration of the time fixed by a prior order. The order of the court made in vacation was undated. Held, that the court on appeal would not presume that the order was made before the expiration of the original leave to file, within Rev. St. 1899, § 728, authorizing the court in vacation to extend the time for filing a bill of exceptions, and hence the bill was not in the record.

3. SAME—REFUSAL OF CONTINUANCE—OBJECTION WAIVED.

The error in refusing a continuance in a criminal case is waived by not assigning it as a ground for a new trial.

4. SAME — INSTRUCTIONS — EXCEPTIONS — NECESSITY.

The error in giving or refusing instructions to which no exceptions were saved is not reviewable on appeal.

5. HOMICIDE—MURDER IN FIRST DEGREE—EVIDENCE —SUFFICIENCY.

Evidence on a trial for homicide examined, and held to justify a verdict of murder in the first degree.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

Louis Eaton was convicted of murder in the first degree, and he appeals. Affirmed.

J. L. Downing and W. R. Satterfield, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

At the November term, 1903, and on the 22d day of December, 1903, of the circuit court of Dunklin county, Mo., the grand jury of said county preferred a charge of murder in the first degree against the defendant for the killing of one Frank Huff, on the 5th day of December, 1903. The defendant was duly arraigned, placed on his trial on the 5th day of May, 1904, and the trial resulted in the verdict of guilty of murder in the first degree. From the record proper it appears that within four days he filed his motions for new trial and in arrest of judgment, which were overruled, and thereupon he was granted an appeal to this court, and a stay of execution pending his appeal. On the 17th day of May, 1904, the court by its order of record granted the defendant until the 17th day of August, 1904, to perfect a bill of exceptions. The bill of exceptions was not filed within the time allowed, but was filed on the 14th of March, 1905. The Attorney General in preparing this case for argument at this term made the point that there was nothing before the court except the record proper, on the ground that the bill of exceptions was not filed in time. Thereupon, on the first day of this term, the defendant by his counsel moved this court to correct the record in this cause wherein the same relates to the order of the judge of the Dunklin county circuit court, the judge before whom said cause was tried, extending the time for filing the bill of exceptions in said cause to November 1, 1904, which was filed in the office of the clerk of the circuit court on the 17th day of August, 1904, for the reason: First, that said order extending the time for filing said bill of exceptions was made and signed by Judge James L. Fort on the 10th day of August, 1904, and within the 90 days allowed by the court for filing said bill of exceptions; second, because said order was delivered to J. L. Downing, Esq., one of the attorneys of the defendant, by Judge Fort on the 10th day of August. 1904, and the said Downing on the 11th day of August, 1904, deposited the same in the post office at Malden, Mo., in an envelope with the proper amount of postage thereon, and addressed to W. R. Satterfield, Esq., at Kennett, Mo., but, by reason of the absence of Mr. Satterfield from Kennett, he did not receive said order until the 17th of August, 1904, the day on which said order was filed in the office of the clerk of the circuit court. This motion is supported by the affidavits of Messrs. Downing and Satterfield tending to establish the cause of the delay in filing said order of the judge of the court extending the time of the filing of the bill of exceptions in said cause to November 1, 1904. Whether this motion should be sustained presents the first question in importance in this case. The time originally granted for the filing of the bill of exceptions expired on the 15th day of August, 1904. The statute allowing bills of exceptions to be filed after the term at which such exceptions are taken is section 728, Rev. St. 1899, and is in these words: "Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the court may by an order entered of record allow, which may be extended by the court or judge in vacation for good cause shown, or within the time the parties to the suit in which such bill of exceptions is proposed to be filed, or their attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in said suit and copied into the transcript of record when sent to the Supreme Court or Court of Appeals."

This court's jurisdiction in this case is appellate only. We have no power to alter or correct the records of the circuit court. In proper cases and upon sufficient data we may order the circuit court to conform its judgments to the judgment of this court, but it has been ruled that, notwithstanding an appeal is pending in this court from the judgment of the circuit court, that court still retained full power and jurisdiction over its own records and might by proper entries nunc pro tunc cause the same to speak the truth, where by inadvertence or misprision of its clerk it had not done so, but it is elementary that this court could not cause the record of the circuit court to be corrected by an entry nunc pro tunc, and this is what we are asked to do by this motion. We are all agreed that we have no power to correct the record of the circuit court.

Having reached this conclusion, we are led to consider the effect of denying the motion in this state of the record. The original grant of time within which to file the bill of exceptions expired on the 15th day of August, 1904, and, unless the time had been extended before the last-mentioned date, neither the court nor the judge nor the parties could after that date make any further extension. The record of the clerk in vacation recites: "And now, on this 17th day of August, 1904, in vacation, comes the defendant, by his attorneys, and files in the office of the clerk of the circuit court the following stipulation extending the time for filing bill of exceptions herein: `State of Missouri, County of Dunklin. In the Dunklin County Court, May Term, 1904. State of Missouri v. Louis Eden, Defendant. To the Clerk of the Circuit Court, County and State Aforesaid: It is hereby ordered by the judge of said court, in vacation, that the time for filing bill of exceptions in said cause be extended to November 1, 1904." J. L. Fort, Judge.' Filed August 17, 1904." This order bears no date and makes no recital of the time when it was done. Are we required, or ought we, to presume it was done before the original grant of time had expired?

The omission to date this order or recite the date of its execution was a most unfortunate omission, if it was in fact made before the time had expired. The judge was exercising a power to act in vacation. The efficacy of his act depended on whether it was performed before or after the expiration of the time originally granted by the court within which to file the bill of exceptions. Presumptions are often indulged in favor of the jurisdiction of courts of record as such, but the powers executed by a judge in vacation are...