State v. Graham
| Decision Date | 03 December 1923 |
| Docket Number | No. 24891.,24891. |
| Citation | 256 S.W. 770,301 Mo. 272 |
| Parties | STATE v. GRAHAM. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.
Austin Graham was convicted of unlawful possession and transportation of intoxicating liquor, and on his appeal to the Supreme Court the case was transferred to the Court of Appeals (295 Mo. 695, 247 S. W. 191), which in turn transferred it to the Supreme Court on the ground that a constitutional question was involved (250 S. W. 925). Case retransferred to the Court of Appeals.
John H. Keith, of Ironton, for appellant.
Jesse W. Barrett, Atty. Gen., and Marshall Compel', and Allen May, Sp. Asst. Attys. Gen., for the State.
The appellant was charged by information in the circuit court of Reynolds county with a violation of the law prohibiting the possession and transportation of intoxicating liquors. The charge was in two counts; one alleging unlawful possession and the other transportation. Upon a trial to a jury the appellant was convicted and fined 8100. The offenses charged being misdemeanors, to confer jurisdiction upon this court it was necessary that a constitutional question be timely raised and properly preserved in the bill of exceptions. That the plea in this behalf was timely there is no question; the latter essential, however, to a review in this court was not complied with.
On the day succeeding the return into court of the verdict, the court rendered judgment against the appellant in accordance therewith. Thereafter, on the same day, a motion for a new trial was filed, and upon being overruled a motion in arrest of judgment was filed. Thereupon the appellant filed an affidavit for and was granted an appeal to this court. This course of procedure was in direct violation of the statute (section 4079, R. S. 1919), which provides among other things that the motion for a new trial shall be filed before judgment. State v. Baird (Mo. Sup.) 248 S. W. 596, and cases, 598; State v. Sparks, 263 Mo. 609, 173 S. W. 1057; State v. Dunnegan, 258 Mo. 376, 167 S. W. 497, and cases; State v. Briscoe, 237 Mo. 154, 135 S. W. 58, 140 S. W. 885; State v. Thomas, 232 Mo. 216, 134 S. W. 571. This section has uniformly been held to be mandatory (State v. Haseall, 284 Mo. loc. cit. 617, 226 S. W. 18); and a failure to comply therewith limits our review to the record proper (State v. Keyger [Mo. Sup.] 253 S. W. loc. cit. 364, and cases). The condition of the record at bar, so far as concerns the time when the judgment was entered and the motion for a new trial filed, is parallel with that in the Dunnegan Case, supra, 258 Mo. p. 376, 167 S. W. 497, in which we held that the action of the trial court in rendering judgment so soon after the return of the verdict did not tend to cure the failure of the...
To continue reading
Request your trial
-
State ex rel. Aquamsi Land Co. v. Hostetter
...Graham, 295 Mo. 695, 247 S.W. 194, transferred to Court of Appeals, 250 S.W. 925, transferred back to Supreme Court and decided in 301 Mo. 272, 256 S.W. 770. Benson C. Hardesty and Rush H. Limbaugh for (1) The abstract of the record shows that the judgment and proceedings of the St. Louis C......
-
State ex rel. Aquamsi Land Co. v. Hostetter
... ... of jurisdiction is later discovered, has been consistently ... followed. State ex rel. v. Hyde, 317 Mo. 714, 296 ... S.W. 775; State ex rel. v. American Surety Co., 210 ... S.W. 428; Bowles v. Troll, 262 Mo. 377, 171 S.W ... 326; State v. Graham, 295 Mo. 695, 247 S.W. 194, ... transferred to Court of Appeals, 250 S.W. 925, transferred ... back to Supreme Court and decided in 301 Mo. 272, 256 S.W ... Benson ... C. Hardesty and Rush H. Limbaugh for ... respondents ... (1) The ... abstract of ... ...
-
State v. Porter
... ... of the return of the verdict [State v. Selleck (Mo ... Sup.) 46 S.W.2d 570(1); State v. Baird, 297 Mo ... 219, 225 (2), 248 S.W. 596, 598 (3)], or the day following ... [State v. Letney (Mo. Sup.) 300 S.W. 674(2); ... State v. Graham, 301 Mo. 272, 274, 256 S.W. 770, 771 ... (2); State v. Eisenhart (Mo. App.) 294 S.W. 422, 423 ... (13)], have been held filed too late for consideration. And ... see, among others, State v. Sparks, 263 Mo. 609, 613 ... (2), 173 S.W. 1057 (3); State v. McSame (Mo. Sup.) ... 267 S.W. 888 (1) ... ...
-
State v. West
...253 S. W. loc. cit. 364; State v. Benny (Mo. Sup.) 256 S. W. 461, 462; State v. Adams (Mo. Sup.) 256 S. W. 743; State v. Graham,. 301 Mo. 272, 256 S. W. 770; State v. Taylor, 301 Mo. 432, 256 S. W. 1059; State v. Caulder, 301 Mo. 276, 256 S. W. 1063; State v. Keller (Mo. Sup.) 263 S. W. 171......