State v. Jones

• Decision Date: 22 December 1890
• Citation: 14 S.W. 946,102 Mo. 305
• Parties: STATE v. JONES.
• Court: Missouri Supreme Court

14 S.W. 946

102 Mo. 305

STATE v. JONES.

Supreme Court of Missouri.

December 22, 1890.

BILL OF EXCEPTIONS — SIGNING BY BY-STANDERS.

1. Under Rev. St. Mo. 1889, § 2170, providing that where the judge refuses to allow a bill of exceptions, it may be signed by "three by-standers, who are respectable inhabitants of the state," an attorney employed in the case is not a competent signer.

2. Where affidavits for and against a bill of exceptions signed by by-standers are in irreconcilable conflict, the statement of the trial judge will be accepted.

3. Under Rev. St. Mo. 1889, § 2170, providing that when the judge refuses to permit a bill of exceptions signed by others than himself either party may take affidavits in relation to the truth of the bill "not exceeding 5 in number," 5 affiants only can verify the truth or falsity of the bill, and the number cannot be increased by having several join in a single affidavit.

Appeal from circuit court, Dallas county; W. P. PORTER, Special Judge.

J. S. Haynes and Thos. M. Brown, for appellant. Atty. Gen. Wood, for the State.

SHERWOOD, J.

The defendant, indicted for seducing and debauching Alfonza Snipes, was tried before a special judge, convicted, and his punishment assessed at imprisonment in the penitentiary for the term of three years. From the judgment and sentence in this case, he appeals to this court. At the threshold of the merits of this cause, objection is made that the bill of exceptions is not signed by the trial judge, who refused to sign the same, giving his reasons therefor, in compliance with the statute, that the bill was untrue in certain particulars, etc. Bills of exceptions are procured in the same way whether the cause be civil or criminal. Rev. St. 1889, §§ 4221, 2168, 2169 et seq.

Where the judge refuses to sign the bill, then it may be signed by three by-standers, respectable inhabitants of the state. Section 2170. When the judge refuses to permit any bill signed by others than himself, as in the above section is provided, then either party to the suit may take affidavits in relation to the truth of the bill, "not exceeding five in number." The affidavits taken on behalf of the defendant are seven in number; that is, three persons make one affidavit, and four others make single affidavits, making five affidavits in all, but made by seven affiants. The statute does not intend that more than one person shall make an affidavit, at least that several persons shall not so join in making...