State v. Guerringer

• Decision Date: 29 June 1915
• Docket Number: No. 18627.,18627.
• Citation: 178 S.W. 65,265 Mo. 408
• Parties: STATE v. GUERRINGER.
• Court: Missouri Supreme Court

178 S.W. 65

265 Mo. 408

STATE v. GUERRINGER.

No. 18627.

Supreme Court of Missouri.

June 29, 1915.

In Banc. Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Vic Guerringer was convicted of rape, and his punishment fixed at death, and he appeals. Reversed and remanded.

Defendant, convicted in division 1 of the criminal court of Jackson county of rape and his punishment fixed at death, has appealed. He was jointly charged with Oscar Harrison and others, but a severance was granted to the several coindictees, and they were separately tried.

The case of Oscar Harrison came to this court on appeal, as did likewise the case of one Maurice Lewkowitz, who, it seems, was separately indicted, but who was present at the identical time, act, and place, taking part in all of the matters and things which it is charged defendant participated in. The facts of the alleged rape, as the evidence shows them to be, are unutterably bestial and indecent. They are set forth in full in the case of State v. Harrison, 174 S. W. 57, and in the case of State v. Lewkowitz, 178 S. W. 58. The student of criminology and of the law and the morbidly curious may read them there. They have no necessary place here in the view we take of this case, and we need not cumber the books more with their abysmally filthy and disgusting details.

The trial began on March 31, 1914, which seems to have fallen upon a Tuesday. The case continued on trial for five days. When the usual adjourning hour came on Saturday afternoon, April 4th, it was not yet finished. A night session was held, and the case went to the jury, it would appear, late Saturday night. The jury came in with their verdict at the hour of 11:45 p. m. of said Saturday night, which was the last juridical day of the January term, 1914; for by statute the April term began on. Monday, April 6, 1914. The learned trial judge received the verdict when it came in. Whether he adjourned court then at once, or merely quit till Monday, the record does not show; but the record does show that he opened his division of the criminal court on Monday, April 6, 1914, in the April term, which term we judicially notice began on that day. The motion for a new trial herein was filed on April 9, 1914, but the court nevertheless considered it, and it was treated in all procedural ways and manners as if the entire case had been, in fact, tried at the April term, 1914, instead of at the January term, 1914, as the fact was. Was this motion untimely filed so as to preclude our review? If it was, and without fault of defendant, is he for that entitled to a new trial? These are the points now vexing us. To their further elaboration and consideration the below brief discussion will be devoted.

Lloyd Martz and Handy & Swearingen, all of Kansas City, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

I. Upon the threshold we are met by the above forecasted and most serious contention on the part of the state. This is, to wit, that since the motion for a new trial was not filed till four days after the end of the term at which the case was tried and the verdict rendered, we cannot consider such motion for any purpose, and since, if the motion for a new trial and the exceptions saved to the overruling thereof are out of the case, all of the matters and things set forth in the bill of exceptions are likewise out of it, and we are relegated for error to the record proper only. There seems to be no error in the record proper. If, then, the state is right in this contention, there is no question but we must affirm the case.

There is no dispute (but, on the contrary, it is admitted) that the jury came in with their verdict 15 minutes before midnight, to wit, at the hour of 11:45 p. m., of Saturday, April 4, 1914; the same being the last 15 minutes of the last hour of the last day of the January term of the criminal court of Jackson county. There was then left by statutory limitation but 15 minutes of secular time—for we exclude the sabbath, which is dies non—till the end of the January term and the beginning of the April term of said court. Section 4214, R. S. 1909. Views of sane men who know any law at all will not differ as to the fact that 15 minutes is not sufficient time within which to prepare and file a motion for a new trial in a case which it took 5 days to try, and wherein the record consists of 737 pages. Even in the face of such a hardship as this does the statute, when viewed in the light of the history of its enaction and amendment, allow a motion for a new trial to be filed after the end of the term at which the case was tried and the verdict rendered. If it cannot be filed then, and thus, without defendant's fault, the circumstances preclude its being sooner filed, shall defendant lose his statutory right to appellate review? This in the last analysis is the concrete question confronting us. The statute reads thus:

"Sec. 5285. The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if not, then before the end of the term, and shall be heard and determined in the same manner as motions for new trials in civil cases."

The part of this section which we have italicized was added in 1909 (Laws 1909, p. 461). Prior to the amending of this section, and on July 13, 1907, this court had decided the case of State v. Brown, 206 Mo. 501, 103 S. W. 955, wherein the facts were that defendant, Brown, was found guilty in the criminal court of Buchanan county of murder in the first degree, and his punishment fixed at death. The regular judge being disqualified, a special judge sat to try the case. The verdict in the case came in late one night—between 9 and 10 o'clock—and on the following morning the regular judge took the bench, and, upon being erroneously informed that defendant did not dasire to take steps toward an appeal, adjourned the court till court in course. At the next regular term of the Buchanan criminal court, which convened 7 days after the coming in of the verdict of guilty, defendant filed his motion for a new trial, and thereafter proceeded duly to appeal to this court. It was held:

(1) That the court below had 30 power to consider or pass on defendant's, motion for a new trial, since it was filed out of time; (2) but that defendant nevertheless had the right to have the rulings of the trial court reviewed here on appeal; (3) and that defendant could not be deprived of his right to the solemn opinion of this court thereon, no laches being shown upon his or upon his counsel's part.

Whether the ruling in the Brown Case furnished the reason for the amendment of 1909 noted above, we need not inquire. If it did, it yet in no wise served to change the general rule; for it is ruled in the Brown Case that the motion for a new trial was untimely filed, and therefore the circuit judge had no right in law to consider such motion for any purpose. So far, then, as the general principle involved is concerned, the law to-day is the same as it was when the Brown Case was ruled. This is so because the amendment of 1909 above noted simply served to limit expressly the time of filing a motion for a new trial to the term at which the trial was had. Prior to that "an absurd law incapable of being intelligibly enforced" (Bingham v. Birmingham, 103 Mo. loc. cit. 352, 15 S. W. 535) had in practice (except in rare cases) served so to limit it; this...