State v. George

• Decision Date: 08 June 1909
• Citation: 221 Mo. 519,120 S.W. 35
• Parties: STATE v. GEORGE.
• Court: Missouri Supreme Court

120 S.W. 35

221 Mo. 519

STATE v. GEORGE.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. CRIMINAL LAW (§ 1087) — APPEAL — RECORD—CONTENTS.

Where the record proper in a criminal case fails to show the filing of a motion for a new trial and that it was overruled, or that any bill of exceptions was filed, none of the errors complained of in the bill of exceptions can be reviewed.

2. RAPE (§ 20)—INFORMATION —REQUISITES AND SUFFICIENCY.

An information by the prosecuting attorney which informs the court that defendant on a date specified at a place named in and upon a person named "a female child under the age of fourteen years, to wit, of the age of thirteen years, unlawfully and feloniously did make an assault, and her the said" female named "then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the state of Missouri," which is duly verified, is in proper form.

Appeal from Circuit Court, Camden County; A. W. Lincoln, Judge.

Joseph F. George, Jr., was convicted of rape, and appeals. Affirmed.

Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

FOX, J.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of Camden county, Mo., convicting him of the crime of rape. The offense of which the defendant was convicted, omitting formal parts of the information, is thus charged: "Joe V. Foster, prosecuting attorney, duly elected, commissioned, sworn, qualified, installed and acting as such in and for said county of Camden, in the state of Missouri, upon his said oath and upon his hereto appended oath, informs the court upon his said oath and upon his hereto appended oath does depose, present, aver and charge that said defendant, Joseph F. George, Jr., on the 5th day of August, A. D. 1904, at the county of Camden, state of Missouri, in and upon one Ida Florence George, a female child under the age of fourteen years, to wit, of the age of thirteen years, unlawfully and feloniously did make an assault, and her, the said Ida Florence George, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the state of Missouri." To this information the defendant entered his plea of not guilty, and upon trial was convicted, and his punishment assessed at five years' imprisonment in the penitentiary.

At the very threshold of the consideration of this case, it is earnestly insisted by the learned Attorney General that there is nothing before this court for review except the record proper. We have carefully analyzed the record as presented to this court upon this appeal, and find that it absolutely fails to disclose that there was a motion for new trial filed or the overruling of any motion for a new trial, or that there was any bill of exceptions filed. It is essential that the record proper show the filing of a motion for new trial and the overruling of it. While the bill of exceptions should show the filing of the motion for new trial and the action of the court upon such motion, yet, in addition to this, it is absolutely essential that the record proper show that the motion for new trial was filed and the ruling of the court upon it. In the recent case of Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992, Judge Valliant, in speaking of this subject, thus very clearly announced the correct rule: "We should not dismiss the appeal in this case because we...