State v. Kaiser
| Decision Date | 12 December 1927 |
| Docket Number | 27897 |
| Citation | 300 S.W. 716,318 Mo. 523 |
| Parties | The State v. H. G. Kaiser and Ed Kaiser, Appellants |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.
Dismissed.
Alexander & Coffer for appellant.
North T. Gentry, Attorney-General, for respondent; Walter E. Sloat, of counsel.
The appellants were charged by information in the Circuit Court of Cape Girardeau County with the unlawful possession of whiskey. Tried to a jury, the court, after hearing the State's evidence, discharged Ed Kaiser; and the jury at the close of the case returned a verdict finding H. G. Kaiser guilty and assessing his punishment at a fine of five hundred dollars. From this verdict and the judgment rendered thereon he has appealed to this court. The case is here by reason of the interposition of a constitutional question.
I. We glean the foregoing facts from what is termed a transcript of the proceedings in the trial court. This transcript embodies neither a full and correct copy of the record proper nor of the bill of exceptions. It is fatally defective in regard to the record proper in that it contains nothing which should have been inserted therein, except the information. The bill of exceptions is likewise incomplete in that the motions to suppress the evidence and quash the search warrant are attempted to be preserved in the record proper, while the entry of the judgment which should have been preserved in the record proper is made a part of the bill of exceptions. In addition to this comedy of errors there are no record entries concerning the swearing of the jury, the trial, the verdict, the judgment, the filing and overruling of the motion for a new trial and the granting of the appeal.
II. Upon an appeal a compliance with the requirements of the statute (Sec. 4102, as amended, Laws 1925, p. 199), is a condition precedent to the right of review in this court without which the right cannot be maintained. If the defects in the transcript were limited to the commingling of record entries with the exceptions this alone would suffice to preclude a review of the errors complained of. In a criminal case nothing short of a "full transcript of the record" will entitle an appellant to be heard on appeal. [Sec. 4102, as amended, supra; State v. Hall, 312 Mo. l. c. 446 and cases cited; State v. Brown, 279 S.W. 98.] This construction of the statute does not relieve the court from the duty of examining the record. This duty is mandatory. [Sec. 4106, R. S. 1919; State v. Hodges, 295 S.W. 786; State v. Hersh, 296 S.W. 433.] If, therefore, the record proper had been preserved it must be examined. Not so, however, where, as in this case, no such record has been preserved. [State v. Gardner, 250 Mo. 426, 157 S.W. 84.]
Our Rule Thirteen, requiring an examination of record entries and matters of exception regardless of the place in the transcript where they may appear, has no application to the review of criminal ...
To continue reading
Request your trial
-
State v. Dimmick
...matters of exception have been incorporated in the record proper. [State v. Forshee, 308 Mo. 651, 661, 274 S.W. 419, 422; State v. Kaiser, 318 Mo. 523, 300 S.W. 716; State v. Hembree (Mo.), 37 S.W.2d II. Defendant filed a motion for a change of venue on account of the prejudice of the inhab......
-
State v. Turpin
... ... 448. Neither can we apply the provision of our Rule 13 that ... if matter which should be set forth in "the bill of ... exceptions" appear in the abstract of the record proper, ... it "shall be considered and treated as if set forth in ... its proper place." In State v. Kaiser, 318 Mo ... 523, 300 S.W. 716, it is said this rule does not cover or ... refer to the review of criminal cases, and certainly such ... ought to be the law when no bill of exceptions was ever filed ... and the cause is submitted wholly on the record proper. We ... shall, however, treat the ... ...
-
State v. Ross
...[See Secs. 3756, 3757, 3761, R. S. 1929, Mo. Stat. Ann., pp. 3292, 3295, 3301; State v. Sparks, 263 Mo. 609, 173 S.W. 1057; State v. Kaiser, 318 Mo. 523, 300 S.W. 716; State v. Hall, 312 Mo. 425, 279 S.W. 102, 109; State v. McHenry (Mo.), 188 S.W. 187.] Except in capital cases wherein the a......
-
State v. Vinson
... ... accordingly, for his fault, we have declined to ... review the alleged errors ... [87 S.W.2d 640] ... upon the trial. And the rule is if an appellant has failed to ... bring up enough of the record to enable us to pass on his ... case, his appeal should be dismissed. [State v ... Kaiser, 318 Mo. 523, 300 S.W. 716; State v ... Craft, 334 Mo. 311, 66 S.W.2d 521; State v. Fish ... (Mo.), 217 S.W. 19.] But should this penalty be visited ... upon an appellant where, as here, he has performed his duty ... insofar as he may, and when, for no default or omission on ... his part, he ... ...