State v. Fraser
| Decision Date | 18 May 1909 |
| Citation | 119 S.W. 389,220 Mo. 34 |
| Parties | STATE v. FRASER. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.
Streeter Fraser was convicted of burglary in the second degree, and he appeals. Affirmed.
E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.
This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Laclede county, convicting him of burglary in the second degree.
The record before us discloses that the defendant was tried, and after the verdict was returned judgment was entered upon such verdict. Subsequent to sentence and judgment defendant filed his motion for a new trial. Section 2689, Rev. St. 1899 (Ann. St. 1906, p. 1587), expressly provides that the motion for new trial shall be filed before the judgment is rendered in the cause. This provision of the statute as to the motion for new trial being filed within four days has been held in a number of cases as being mandatory. State v. Brooks, 92 Mo., loc. cit. 591, 5 S. W. 257, 330; State v. Maddox, 153 Mo., loc. cit. 473, 55 S. W. 72. There is no necessity for discussing this proposition as to the effect of the motion for new trial being filed after sentence and judgment. In the case of State v. Pritchett (decided by Judge Burgess at the present sitting of this court) 119 S. W. 386, that question is fully considered. Therefore what is said in that case is applicable to the case at bar. It was ruled in the Pritchett Case that the failure to file the motion for new trial before sentence and judgment, with the additional failure to object and except to the court rendering judgment at that time before passing upon the motion for new trial, simply leaves the case in the appellate court upon the record proper. Therefore it follows that, as applicable to this case, there is nothing to be considered except the record proper.
Directing our attention to the record proper, we find the...
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State v. Jackson
... ... new trial was pending was in effect a denial of such motion ... The ... disclosures of the record in this cause are unlike those ... presented in the cases of State v. Pritchett, 219 ... Mo. 696, 119 S.W. 386, and State v. Fraser, 220 Mo ... 34, 119 S.W. 389. In those cases the records disclosed that ... after the return of the verdicts judgments were entered upon ... such verdicts, and subsequent to sentence and ... [120 S.W. 69] ... judgment defendants filed their motions for new trial. In ... other words, the ... ...
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State v. Whalen
... ... manner as motions for new trials in civil cases." ... The ... above section has been uniformly declared mandatory in ... respect to above requirements. [State v. Fawcett, ... 212 Mo. 729, 111 S.W. 562; State v. Fraser, 220 Mo ... 34, 119 S.W. 389; State v. Kile, 231 Mo. 59, 132 ... S.W. 230; State v. Standley, 232 Mo. 23, 132 S.W ... II ... Counsel for appellant seek to overturn the plain provisions ... of foregoing statute, by affidavits filed here, which are ... dehors the record, ... ...
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State v. Baird
...before judgment," etc. The statute has been construed in some few cases. State v. Pritchett, 219 Mo. 696, 119 S. W. 386; State v. Fraser, 220 Mo. 34, 119 S. W. 389; State v. Currier, 225 Mo. 642, 125 S. W. 461; State v. Dunnegan, 258 Mo. 373, 187 S. W. 497; State v. Riley, 228 Mo. 431, 128 ......
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State v. Whalen
...has been uniformly declared mandatory in respect to above requirements. State v. Fawcett, 212 Mo. 729, 111 S. W. 562; State v. Fraser, 220 Mo. 34, 119 S. W. 389; State v. File, 231 Mo. 59, 132 S. W. 230; State v. Stanley, 232 Ma. 23, 132 S. W. 2. Counsel for appellant seeks to overturn the ......