State v. Griffin

• Decision Date: 08 April 1913
• Citation: 249 Mo. 624,155 S.W. 432
• Parties: STATE v. GRIFFIN.
• Court: Missouri Supreme Court

155 S.W. 432

249 Mo. 624

STATE v. GRIFFIN.

Supreme Court of Missouri, Division No. 2.

April 8, 1913.

1. CRIMINAL LAW (§ 1092) — BILL OF EXCEPTIONS — AUTHENTICATION.

A purported bill of exceptions, concluding, "and now within the time allowed, comes the defendant and presents this his bill of exceptions herein and prays the court to sign, * * * settle and file the same," but not authenticated by the signature of the presiding judge nor by the signatures of bystanders, as provided by

Rev. St. 1909, § 2031, cannot be considered, and there is nothing before the appellate court but the abstract of the record proper.

2. INDICTMENT AND INFORMATION (§ 79) — INFORMATION — MISTAKE IN SPELLING — SUFFICIENCY.

The omission of the letter "h" in the word "child" in an otherwise good information charging rape, punishable by Rev. St. 1909, § 4471, on "Mandy Williams, a female cild of the age of 11 years," does not mislead or prejudice the substantial rights of accused, and must be disregarded as required by section 5115.

3. INDICTMENT AND INFORMATION (§ 56) — REQUISITES.

The rule that indictments must be specific voices the command of Const. art. 2, § 22, declaring that in criminal cases accused shall have the right to demand the nature and cause of the accusation against him.

4. CRIMINAL LAW (§ 957) — VERDICT — SETTING ASIDE — GROUNDS.

A verdict of conviction will not be set aside on the ground that several of the jurors as shown by their affidavits believed that the jury would not have agreed on a verdict if they had not believed that accused could be paroled.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Harry Griffin was convicted of crime, and he appeals. Affirmed.

J. W. Tincher and N. T. Cave, both of Fulton, for appellant. E. W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

BROWN, P. J.

Defendant was charged with and convicted of the crime of rape committed upon one Mandy Williams, and from a judgment of the circuit court of Callaway county sentencing him to serve a term of five years in the penitentiary he appeals.

I. No Bill of Exceptions.

The brief of the Attorney General filed in this case on January 1, 1913, challenges the sufficiency of the bill of exceptions on the ground that it does not purport to be authenticated by the signature of the circuit judge who tried the case, nor by the signatures of three bystanders, as provided by section 2031, R. S. 1909. Upon examination we find that, so far as matters of exceptions are concerned, this appeal is in the same condition as the appeal in the case of State v. Roy Watts, 154 S. W. 721, decided at this term, but not yet officially reported. The abstract of the record proper is certified by the clerk of the circuit court in due form, and recites that the defendant filed a bill of exceptions, but said record proper contains no copy of the evidence or instructions of the court. What defendant asks us to treat as a bill of exceptions is a mere bundle of typewritten papers, not authenticated by the certificate of the clerk of the circuit court, and not attached to any paper that is authenticated or verified. If this bundle of papers speaks the truth, what was intended as a bill of exceptions was not authenticated by the signature of the trial judge. The concluding paragraph of what defendant insists is a copy of the bill of exceptions reads as follows: "And now, within the time allowed, comes the defendant and presents this, his bill of exceptions herein, and prays the court to sign, seal, allow, settle, and file the same and make it a part of the record in this cause. And this is accordingly done on this the _____ day of ____, 1912. ________, Judge of the Callaway County Circuit Court, State of Missouri." Upon the authority of the case of State v. Watts, supra, Roberts et al. v. Jones, 148 Mo. 368, 49 S. W. 985; Reno v. Jarrell, 163 Mo. 411, 63 S. W. 808; State v. Collins, 196 Mo. 87, 93 S. W. 1117, and State v. Brown, 164 Mo. App. 726, 147 S. W. 1134, we must decline to review anything except the record proper in this cause.

II. Indictment.

Omitting formal parts, the information charges that defendant: "On or about the 19th day of August, 1911, at Callaway county, Missouri, did then and there in and upon one Mandy Williams, a female cild of the age of eleven years, unlawfully, violently and feloniously make an assault and her the said Mandy Williams, then and there, unlawfully, forcibly and against her will, feloniously did ravish and carnally know: contrary to the form of st...