State v. Glass
| Decision Date | 12 December 1927 |
| Docket Number | 28277 |
| Parties | The State v. Steve Glass, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.
Affirmed.
North T. Gentry, Attorney-General, and A. M. Meyer Special Assistant Attorney-General, for respondent.
(1) The information was not insufficient because it contained no formal conclusion. Ex parte Keet, 287 S.W. 463. (2) No bill of exceptions is before this court for the reason that defendant, in attempting to make up a short form bill, has failed to comply with the provisions of Section 4102, R. S 1919, as re-enacted, Laws 1925, p. 199, which requires that such short form bill shall be supported by an agreement in writing between defendant, or his attorney, and the state. Laws 1925, p. 199. Statutes governing appeals must be strictly followed. State v. Campbell, 248 S.W. 927; Cassidy v. City of St. Joseph, 247 Mo. 197. (3) The allegations in the motions for a new trial relating to testimony are not to be considered for the reason that no evidence, admitted or rejected, is preserved in the bill of exceptions. (4) The allegations in the motion for a new trial, relating to instructions, are not definite and certain as required by the statute. State v. Standifer, 289 S.W. 856. (5) The bill does not preserve any exceptions to the giving of or refusal to give any instructions; hence, the trial court would not, in any event, be convicted of error even though the points relating to instructions had been properly preserved in the motion for new trial. State v. Hedgpeth, 311 Mo. 460. (6) Defendant's motion for new trial, attempts to assign as error the alleged failure of the court to instruct on all the law of the case, the alleged failure of the court to instruct as to all of defendant's rights under the law of self-defense and the giving of what is alleged to be a vague, indefinite, uncertain and unduly restricted instruction on manslaughter, in that the instruction tends to and does comment on the testimony. (a) A duplicitous assignment, such as this, does not comply with Sec. 4079, Laws 1925, p. 199, which requires that specific grounds or causes for a new trial shall be set forth in "separate numbered paragraphs." (b) The allegation that the court did not fully instruct on all the law of the case raises nothing for review. State v. Boone, 289 S.W. 578; State v. Burrell, 298 Mo. 679. (c) The defendant was not entitled to any "rights of self-defense" or any instructions upon the same unless there was evidence to justify the giving of such instructions. State v. Laycock, 141 Mo. 280. Defendant has not brought up the evidence for consideration and, therefore, whether or not further instructions were justified or necessitated by the evidence cannot be considered. In addition, there is no showing that defendant requested any additional instructions upon the subject of self-defense or upon any subject and, hence, he is not entitled to complain upon appeal. State v. Pitts, 156 Mo. 247; State v. Rozell, 279 S.W. 711; State v. Fletcher, 190 S.W. 323. The instruction given on self-defense correctly declares the law. State v. Jones, 273 S.W. 733; State v. Aurentz, 263 S.W. 178; State v. Northington, 268 S.W. 59; State v. Rozell, 225 S.W. 931; State v. McQuitty, 237 Mo. 232. The main instruction on second degree murder, under which defendant was convicted, omits any reference to self-defense but contains the words "premeditatedly and of his malice aforethought," negativing self-defense so that it was proper to treat that defense solely in a separate instruction. State v. Wicker, 222 S.W. 1014; State v. Jones, 309 Mo. 55. (d) The instruction numbered 4, on manslaughter, was a correct statement of the law in a form many times approved by this court.
The record shows that a jury in the Circuit Court of the City of St. Louis, May 25, 1926, returned a verdict finding the defendant guilty of murder in the second degree and assessing his punishment at imprisonment in the penitentiary for thirty years. Thereafter, motion for new trial was filed and overruled, and sentence pronounced after according defendant his allocution. The record recites the summoning and swearing of the jury, that the testimony of witnesses was heard, arguments made, instructions received by the jury, the cause submitted and a verdict returned, and all other formal proceedings necessary in the conduct of a trial and the perfection of an appeal. A properly authenticated bill of exceptions appears, which contains the verdict, the motion for new trial, the instructions given, the affidavit for appeal, but no evidence.
I. The appeal was perfected by an "abbreviated or partial transcript" as provided by Section 4102, Revised Statutes 1919, as amended. [Laws 1925, p. 199.] It was amended by appending the following proviso:
"Provided, however, that any abbreviated or partial transcript of the evidence and oral proceedings, in narrative form or otherwise which the defendant or his attorney for the State may agree upon in writing as sufficiently presenting to the appellate court the issues involved on such appeal, shall be deemed and taken as sufficient on such appeal, and shall by the clerk be incorporated in the transcript of the record certified and transmitted by him to the appellate court, instead of the bill of exceptions mentioned above."
Apparently this proviso was an attempt to allow the attorney for the State and the defendant or his attorney to agree upon the "partial transcript" which would present the issues involved in the appeal, but the expression in the proviso relating to the partial transcript is "which the defendant or his attorney for the State may agree upon." It is evident that some words intended to be inserted were omitted. It should read, "which the defendant or his attorney (and attorney) for the State may agree upon." The words "and attorney" in parenthesis, doubtless were inadvertently omitted. We must so understand the expression or it is meaningless.
The Attorney-General objects to the sufficiency of the transcript on the ground that no agreement in writing relating to it exists between the defendant and the attorney for the State. At the end of the transcript we find a statement that the defendant's bill of exceptions was settled, allowed, etc., and this is signed by the judge, by the attorney for the defendant, and by the assistant circuit attorney. The fact that the attorney for the defendant and the attorney for the State each signed the abbreviated transcript sufficiently satisfied the requirements that their agreement be in writing.
In abbreviating the evidence they condensed it to the vanishing point; that is, omitted it altogether. Yet the record presents questions for our consideration.
II. In the motion for new trial it is asserted that the information is defective in that it does not charge that the defendant, Steve Glass, "killed and murdered" Vivian Glass.
The information avers in due and approved form that Steve Glass, on the 23rd day of February, 1926, with force of arms, in and upon one Vivian Glass, etc., feloniously, wilfully, deliberately, premeditatedly and with malice aforethought, did make an assault and with a certain razor inflict a mortal wound, etc., from which the said Vivian Glass died on the twenty-third day of February, 1926, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. All this is set out with sufficient precision and completeness, but the information does not conclude with the old form required in common law indictments and later followed in informations:
"Wherefore the prosecuting attorney aforesaid, upon his oath aforesaid, informs the court that the defendant at the time and in the manner and by the means aforesaid the said Vivian Glass feloniously, wilfully, premeditatedly and of his malice aforethought did kill and murder," etc.,
It was held by this Court en Banc, all members concurring excepting Graves, J., absent, in Ex parte Keet, 287 S.W. 463, that the formal conclusion thus omitted was no longer necessary under our practice. The opinion, written by Judge Ragland, traces the origin and historical reason for that formal declaration in an indictment, and disposes of the matter thus (l. c. 465):
We pointed out in State v. Lee, 303 Mo. 246,...
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