State v. Hyatt

• Decision Date: 17 May 1934
• Docket Number: 33193
• Citation: 71 S.W.2d 711
• Parties: STATE v. HYATT
• Court: Missouri Supreme Court

71 S.W.2d 711

STATE v. HYATT

No. 33193

Supreme Court of Missouri, Second Division

May 17, 1934

Thomas A. Mathews, of Flat River, and Benj. H. Marbury, of Farmington, for appellant.

Roy McKittrick, Atty. Gen., and Olliver W. Nolen, Asst. Atty Gen., for the State.

All concur except ELLISON, P. J., absent.

OPINION

TIPTON, Judge.

The appellant, a practicing physician, in St. Francois county Mo., was tried before a jury in the circuit court on the 2d day of December, 1930, and was found guilty of manslaughter, in that he caused the death of Lola Hillman in attempting to produce an abortion upon her, in violation of section 3991, R. S. Mo. 1929 (Mo. St. Ann. § 3991, p. 2797). Appellant has duly appealed to this court.

1. The verdict of the jury was returned on December 2, 1930. By order of court the appellant was given until December 16, 1930, to file a motion for a new trial. He filed it on December 15, 1930. The state contends that we cannot consider the bill of exceptions because the motion for a new trial was not filed within ten days after the verdict was returned. We agree with the state in its contention. Section 3735, R. S. Mo. 1929 (Mo. St. Ann. § 3735, p. 3275), requires motion for a new trial in criminal cases to be filed before judgment and within four days after verdict, if the term so long continues; if not, then during the term, 'provided, that the court shall have power in any case for good cause shown to extend the time for filing such motion for a period not exceeding ten days from the date of the return of the verdict.' We have always held mandatory the requirement of the statute as to the filing of such motions. The record must show affirmatively that the motion for a new trial was filed in time. Where it was not filed within four days after the verdict was returned the record must show that the court extended the time. Under the statute, the court cannot extend the time beyond ten days after the verdict is received. State v. Jefferson et al. (Mo. Sup.) 64 S.W.2d 929; State v. Blanchard et al., 326 Mo. 965, 33 S.W.2d 937; State v. Schmitz (Mo. Sup.) 46 S.W.2d 539; State v. Harrison (Mo. Sup.) 29 S.W.2d 63; State v. Malone (Mo. Sup.) 62 S.W.2d 909. The motion for a new trial was not filed within this ten-day period, it follows that there is nothing before us but the record proper for review.

2. The amended information is sufficient as to both form and substance.

Section 3991, R. S. Mo. 1929 (Mo. St. Ann. § 3991, p. 2797), substantially is as follows: Any person who, with intent to produce a miscarriage or abortion, uses upon a woman any instrument or other method or device to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, or if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such purpose), shall, in event of the death of said woman, or any quick child whereof she may be pregnant, being thereby occasioned, upon conviction, be adjudged guilty of manslaughter and punished accordingly.

The amended information follows the language of the statutes and is, therefore, sufficient. In fact we have approved similar information in the cases of State v. Goodson, 299 Mo. 321, 252 S.W. 389, and State v. Anderson, 298 Mo. 382, 250 S.W. 68. The appellant was charged by the information with manslaughter, in having feloniously killed Lola Hillman by performing an abortion upon her the -- day of May, 1930.

The appellant contends that the complaint filed in the justice court was not sufficient to support the amended information in that the complaint charges him with abortion while the amended information charges him with manslaughter. If this were true, it would be a matter of exception and for reasons we have previously discussed is not before us for review. But if we could review the bill of exceptions, we would find that the appellant announced ready for trial without making any objection, and, therefore, waived any defects that might be in the complaint. State v. Shuls, 329 Mo. 245, 44 S.W.2d...