State v. Herron

• Decision Date: 20 November 1906
• Citation: 199 Mo. 159,97 S.W. 878
• Parties: STATE v. HERRON.
• Court: Missouri Supreme Court

97 S.W. 878

199 Mo. 159

STATE v. HERRON.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

CRIMINAL LAW — APPEAL — BILL OF EXCEPTIONS — PRESERVATION OF RULINGS.

While the transcript on appeal in a criminal case contains the motions for new trial and in arrest of judgment, and the instructions given by the court, the court cannot review

the same, in the absence of a bill of exceptions preserving the action of the court thereon.

Appeal from Circuit Court, Lawrence County; Hugh Dabbs, Special Judge.

Arthur Herron was convicted of robbery in the first degree, and he appeals. Affirmed.

Grayston & Graham and C. L. Henson, for appellant. The Attorney General and N. T. Gentry, for the State.

FOX, J.

This cause comes here upon appeal by the defendant from a judgment of conviction in the circuit court of Lawrence county for robbery in the first degree. On the 3d day of January, 1905, the prosecuting attorney of Lawrence county filed an information, duly verified, charging the defendant and Otis Herron, Fred Herron, and Thomas Finn with robbery in the first degree. On his application the defndant was granted a severance, and, on his application, defendant was granted a change of venue on account of the prejudice of the regular judge of that court, Hon. F. C. Johnson. Hon. James T. Neville, judge of the Eighteenth circuit, was called in, but failed and declined to come. By agreement of both sides, Hon. Hugh Dabbs, judge of the Twenty-Fifth circuit, was called in and presided at the trial. At the November term, 1905, the defendant was convicted and his punishment assessed at 10 years in the penitentiary. After filing unsuccessful motions for a new trial and in arrest of judgment, defendant appealed. At his request, the court granted the defendant leave to file his bill of exceptions till during the next term of court, but no bill was filed; hence this appeal presents only the record proper for consideration.

While, in the transcript before us, we find that the clerk of the court, in certifying the cause to this court, has copied in the record proper what purports to be the motions for new trial and in arrest of judgment, as well as the instructions given by the court, however, in the absence of a bill of exceptions preserving the action of the court upon such matters they cannot be considered and have no place in the record proper. The information disclosed by the record, filed by the proscuting attorney of Lawrence county, was duly verified,...