State v. Finley

• Decision Date: 23 May 1911
• Citation: 234 Mo. 603,137 S.W. 879
• Parties: STATE v. FINLEY.
• Court: Missouri Supreme Court

137 S.W. 879

234 Mo. 603

STATE v. FINLEY.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. CRIMINAL LAW (§ 1088)—APPEAL—BILL OF EXCEPTIONS—MOTION TO QUASH.

A motion to quash an indictment is no part of the record proper, and error of the court in overruling such motion must be preserved in the bill of exceptions.

2. CRIMINAL LAW (§ 1064)—APPEAL AND ERROR — STATEMENT OF GROUNDS FOR NEW TRIAL.

Error as to matters not appearing in the record proper, unless called to the attention of the trial court in the motion for a new trial, will be held to have been waived, and will not be considered on appeal.

3. COURTS (§ 247)—SUPREME COURT—JURISDICTION —CONSTITUTIONAL QUESTIONS.

Where the record on appeal from a conviction for a misdemeanor shows that no constitutional question was raised, save by a motion to quash the indictment, and defendant in his motion for new trial did not call the attention of the trial court to the alleged error in overruling the motion to quash, no constitutional question is presented, and the Supreme Court has no jurisdiction on appeal.

Appeal from Circuit Court, Callaway County; M. D. Thurman, Judge.

J. B. (Dude) Finley was convicted of a violation of the local option law, and he appeals. Cause transferred to the Kansas City Court of Appeals for determination.

D. W. Herring and W. S. Pope, for appellant. Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

KENNISH, P. J.

Appellant was convicted in the circuit court of Callaway county of violating the local option law, and appealed from the judgment rendered against him.

The Attorney General has filed a motion to transfer the cause to the Kansas City Court of Appeals; the grounds upon which said motion is based being that defendant was convicted of a misdemeanor, and did not, at any stage of the proceedings in the lower court, raise and preserve any constitutional question conferring upon this court appellate jurisdiction of the cause. The record discloses that the only way in which any constitutional question was raised in the trial court was by a motion to quash the indictment. In his motion for a new trial the defendant did not call the attention of the court to the alleged error in overruling the motion to quash.

A motion to quash an indictment or information is no part of the record proper, and error of the court in overruling such motion must be preserved in the bill of exceptions. State v. Coleman, 199 Mo. 112, 97 S. W....