State v. Hooper
| Decision Date | 14 January 1963 |
| Docket Number | No. 2,No. 49153,49153,2 |
| Parties | STATE of Missouri, Respondent, v. George Carthel HOOPER, Appellant |
| Court | Missouri Supreme Court |
Richard Wolff, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., James W. Steele, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
George Carthel Hooper appeals from a judgment of conviction for robbery in the first degree by means of a dangerous and deadly weapon (a pistol), under which he was sentenced, as an habitual offender (Sec. 556.280, RSMo 1959, V.A.M.S.), to twelve years' imprisonment. The case is here on a full transcript furnished at public expense, defendant having been permitted to appeal as a poor person. In the absence of a brief on his part, as here, we would look to his motion for a new trial for his assignments of error; but the state takes the position that the motion for a new trial was not timely filed, and hence preserves nothing for review.
The transcript reflects the following: Verdict returned June 1, 1961, and on June 6, 1961, 'defendant was granted thirty days additional time in which to file his mation for new trial.' The next recitals of the transcript are: 'And thereafter on August 23, 1961, by leave of Court, defendant filed as to June 16, 1961, Nunc Pro Tunc, the following motion for a new trial,' etc. The motion for new trial was heard and submitted on August 29, 1961, and overruled on October 9, 1961, following which, and on the same day, allocution was accorded, judgment was entered and sentence pronounced in accordance with the verdict. Notice of appeal was filed October 16, 1961, and the transcript was filed January 2, 1962, in the circuit court, and on January 4 in the office of our clerk.
On March 13, 1962, defendant filed in the Supreme Court his 'Motion to Amend Transcript' by inserting in said transcript and making a part thereof a certified copy of an instrument (tendered with the motion) styled 'Court Order' which purports to sanction the nunc pro tunc filing and entering of defendant's motion for a new trial on August 23, 1961, as of June 16, 1961, which order, omitting caption, reads as follows:
'COURT ORDER
'By leave of Court, motion of Defendant George Carthel Hooper for new trial, filed as of June 16, 1961, said motion being entered as a timely motion filed, Nunc Pro Tunc.
/s/ Richard Wolff
Attorney for Defendant
/s/ Michael J. Scott
Judge
Filed
August 23, 1961'
The motion to amend averred (among other things) that 'the transcript does not clearly show that defendant's motion for new trial was timely filed and that unless said Court Order be inserted and made a part of the official transcript in this cause, the motion of defendant for new trial will not appear as having been timely filed.' The motion to so amend was sustained, and the instrument tendered is before us for whatever it may be worth. Under the local practice, the signature of the attorney procuring such an order is appended to it along with that of the judge. From the fact that the order bears the signature of the trial judge, we infer it is a copy of the original minute or memorandum which went to the clerk's office, and from which such entry was copied into, or spread upon the premanent records of the court in this case.
With respect to the time for filing a motion for a new trial in a criminal case, Rule 27.20, V.A.M.R., provides that the same 'shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion.' The rule is mandatory (State v. Ash, (Mo.) 286 S.W.2d 808; State v. Crocker, (Mo.) 335 S.W.2d 32), so that at all events the motion for new trial must be filed within forty days after the return of...
To continue reading
Request your trial
-
State v. Rapp
...'cured,' if indeed such action did not constitute a nunc pro tunc order. For the requirements on such an order see the case of State v. Hooper, Mo., 364 S.W.2d 542. It is obvious that there was no such order, nor could there have been one upon the present record; and neither the parties nor......
-
State v. Owen, 54730
...attempt outside the record to amend the record nunc pro tunc to supply an order extending the time, held to be a nullity under State v. Hooper, Mo., 364 S.W.2d 542, hence nothing was presented for The state also cites State v. White, Mo., 439 S.W.2d 752, 753, where the motion was not filed ......
-
State v. Cantrell
...that a motion for new trial in a criminal case be filed within ten days after the return of the verdict, is mandatory. State v. Hooper, Mo.Sup., 364 S.W.2d 542. On application defendant may be granted an extension of time for an additional period of thirty days, but there is no record in th......
-
Hooper v. Swenson
...to twelve years' imprisonment. The judgment of conviction was appealed to the Missouri Supreme Court and was affirmed. State v. Hooper (Mo.Sup.) 364 S.W.2d 542. Briefly summarized, petitioner states as grounds for the writ that (1) under the law of Missouri the Habitual Criminal Act was not......