State v. Griffin

• Decision Date: 18 November 1889
• Citation: 12 S.W. 358,98 Mo. 672
• Parties: STATE v. GRIFFIN.
• Court: Missouri Supreme Court

12 S.W. 358

98 Mo. 672

STATE v. GRIFFIN.

Supreme Court of Missouri.

November 18, 1889.

APPEAL — RECORD — BILL OF EXCEPTIONS.

1. Under Laws Mo. 1885, p. 219, amending Rev. St. Mo. § 3776, and providing that it shall not be necessary for the review of the action of any lower court, on appeal or writ of error, that the motion for new trial, in arrest of judgment, or instructions filed in lower court, be copied in the bill of exceptions, provided there be in the bill of exceptions a direction to the clerk to copy the same, and the same be copied, into the record, they will not be considered on appeal, unless they are either themselves embodied in the bill of exceptions, or unless there is contained therein a direction to the clerk to copy them into the record, and they are so copied.

2. Laws Mo. 1885, p. 219, does not embrace within its terms the application for a continuance, nor the evidence, and they cannot, therefore, be considered by the appellate court, unless set forth in the bill of exceptions.

Appeal from circuit court, McDonald county; M. G. McGREGOR, Judge.

J. F. Williams, Joseph Parks, and Kersey & Meighan, for appellant. The Attorney General, for the State.

SHERWOOD, J.

The defendant was charged by the indictment with murder in the second degree. When tried he was convicted of that offense, and his punishment assessed at 10 years in the penitentiary, and, being sentenced accordingly, he appeals to this court. Section 3776, Rev. St. 1879, has been materially amended by the act approved March 31, 1885, (Laws of that year, p. 219.) The amendatory section, so far as necessary to quote, reads as follows: "But it shall not be necessary for the review of the action of any lower court, on appeal or writ of error, that the motion for a new trial, in arrest of judgment, or instructions filed in the lower court, shall be copied or set forth in the bill of exceptions filed in the lower court: provided, the bill of exceptions so filed contains direction to the clerk to copy the same, and the same are so copied, into the record sent up to the appellate court." Under the well-settled practice and rule of this court, the evidence, the motion for new trial and in arrest, application for continuance and instructions, in short, all matters of exception not constituting part of the record proper, had to be incorporated in the bill of exceptions, or else they would not be noticed by this court; and the same rule applies in this regard in criminal as in civil causes. Sections 1921, 3635, 3636; State v. Shehane, 25 Mo. 565; Jefferson City v. Opel, 67 Mo. 394; Baker v. Loring, 65 Mo. 527; Stevenson v. Saline Co., Id. 425; Sturdivant v. Watkins, 47 Mo. 177; State v. Wall, 15 Mo. 208; State v. Treace, 66 Mo. 124; Blount v. Zink, 55 Mo. 455; State v. Marshall, 36 Mo. 400; Tower v. Moore, 52 Mo. 118; State v. Dunn, 73 Mo. 586; State v. McCray, 74 Mo. 303; State v. Robinson, 79 Mo. 66; McCarthy v. McGinnis, 76 Mo. 344. As already seen, however, section 3776, as amended by Laws Mo. 1885, p. 219,...