State v. Elschinger

• Citation: 223 Mo. 53,122 S.W. 691
• Parties: STATE v. ELSCHINGER.
• Decision Date: 23 November 1909
• Court: United States State Supreme Court of Missouri

122 S.W. 691

223 Mo. 53

STATE v. ELSCHINGER.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. CRIMINAL LAW (§ 1092) — BILL OF EXCEPTIONS — EXTENSION OF TIME FOR FILING.

An order extending the time for filing the bill of exceptions, made in vacation after the expiration of the time fixed by a prior order, is void.

2. CRIMINAL LAW (§ 1092) — BILL OF EXCEPTIONS — FAILURE TO FILE IN TIME — EFFECT.

A bill of exceptions not filed within the time fixed cannot be considered.

3. CRIMINAL LAW (§ 1144) — APPEAL AND ERROR — AFFIRMANCE.

In the absence of bill of exceptions and of any error in the record proper, it will be presumed that the accused had a fair trial, and the judgment must be affirmed.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Charles Elschinger was convicted of murder, and he appeals. Affirmed.

Harry Walsh, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted on the 19th day of March, 1908, by the grand jury of the city of St. Louis for murder in the first degree of Louisa Elschinger, his wife. On the 24th of March, 1908, the defendant was duly arraigned and entered his plea of not guilty, and the cause was continued to the next term of court. At the April term, 1908, he was put upon his trial and convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life. Motions for new trial and in arrest of judgment were duly filed and overruled, and the defendant sentenced in conformity with the verdict. From that sentence he has appealed to this court. On May 5, 1908, defendant was given 90 days in which to file his bill of exceptions. No bill of exceptions was filed within the time granted, and it appears that on September 5, 1908, the following order was made and entered upon the record of the circuit court: "Saturday, September 5, 1908. State of Missouri, v. Charles Elschinger. Murder in the first degree. Now on this day, it appearing from the affidavit filed by the attorney for the above-named defendant, filed this 5th day of September, 1908, that the clerk of this court inadvertently failed to enter an order of this court made on the 5th day of August, 1908, granting additional time in which to file bill of exceptions in this cause, it is now hereby ordered by the court, subject to the action of the court, upon the application for amendment of record concerning the bill of exceptions herein, that the following order be entered nunc pro tunc and for the said date to conform with the facts and proceedings in this cause, to wit: It is this day ordered by the court that the time heretofore granted defendant to file his bill of exceptions herein, on or before the 5th day of August, 1908, be extended up to the 5th day of October, 1908, in the October term, 1908, of said court, and that when so filed the same to have the same force and effect as if filed on the 5th day of August, 1908." What purports to be the bill of exceptions in the cause was filed on October 5, 1908. If the bill of exceptions shall be considered as a part of the record, it appears that several of the jurors, upon their voir dire examination, stated that under no circumstances would they return a verdict assessing the death penalty. Thereupon, on the challenge of the state, these jurors were excused, and the defendant excepted to the action of the court.

The evidence on behalf of the state tended to show that the defendant, for about three months prior to the 6th of March, 1908, the date of the homicide, had been conducting a saloon at 738 South Broadway, in the city of St. Louis. The defendant and the deceased were married in November, 1907, and at the time of the killing of defendant's wife they were living in rooms above the defendant's saloon. They each had children by former marriages. The defendant had invested $800 of the money received by his wife from the life insurance of her former husband in his saloon business. For some time before the date on which the killing occurred, defendant and deceased had not lived harmoniously. Different witnesses testified to assaults which the defendant had made upon his wife. It seems that differences arose between the defendant and the deceased concerning the repayment to her of her money which defendant was using in his saloon business. About two days before the homicide, the defendant's wife, apparently in an effort to recover a portion of her money from her husband, took $220 from the saloon. This precipitated a quarrel, in which the defendant threatened to put his wife out of the house, but refused to permit her to remove her furniture. There was also evidence that on this occasion the defendant assaulted and beat his wife, and on the following morning another difficulty arose, in which the defendant again assaulted his wife. On the day before the homicide, the defendant and his wife engaged in an altercation in their rooms, in which it appears that the deceased assaulted the defendant with some cooking utensils. They were separated by the bartender, who took the defendant down in the saloon, and they were followed by the deceased, who attempted to attack the defendant with a cleaver. She was disarmed, and the pair engaged in a fight, which resulted in the arrest of both. This was about 9 o'clock of the night of March 5th. The evidence tended to show that the deceased, at this time, bore numerous marks of violence on her person. She gave bond and was released at once; but the authorities held the defendant, despite the fact that bond had been given for him, for fear he would renew the trouble. On the next morning the defendant was released, when he said, "I'll fix her for this." This was about 5:45 on the morning that his wife was killed. At 7:30 on the same morning, defendant secured, and had ready, a moving van, and he and his wife engaged in a heated argument about his right to remove the saloon stock. Advised by the officer that both parties would be arrested if the disturbance did not cease, the defendant left the saloon and proceeded to a pawnshop on Sixth street and attempted to purchase a revolver, but was unsuccessful. He returned to his saloon, drank some more whisky, and he and deceased went upstairs to their apartments. In a few moments...