State v. Kelsay
| Decision Date | 04 June 1929 |
| Docket Number | No. 29540.,29540. |
| Citation | 18 S.W.2d 491 |
| Parties | STATE v. KELSAY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Christian County; Fred Stewart, Judge.
Leonard Kelsay was convicted of grand larceny, and he appeals. Affirmed.
Omer E. Brown, of Ozark, for appellant.
Stratton Shartel, Atty. Gen., and Walter E. Sloat, Sp. Asst. Atty. Gen., for the State.
In an information filed in the circuit court of Christian county defendant was charged with grand larceny, that is, with unlawfully and feloniously stealing, taking, and carrying away one white-face heifer calf about nine months old. Tried to a jury, the verdict was guilty as charged in the information, and the punishment was assessed at a term of two years in the state penitentiary. Defendant appealed from the judgment entered on the verdict.
I. It is shown by the record proper before us that the prosecuting attorney filed in the circuit court of Christian county an information charging defendant with grand larceny, that is, the larceny of a heifer. It is also shown that defendant was arraigned and pleaded not guilty; that he was tried to a jury, found guilty by their verdict, and two years' punishment assessed; that he filed a motion for a new trial, which was overruled, and, upon allocution, he was sentenced and judgment pronounced in accordance with the verdict; and that he filed an affidavit for appeal and was allowed an appeal to this court. A certificate of the clerk is appended to the abstract of the record proper, and, consequently, that which the abstract of the record proper shows and preserves is properly before us. However, the abstract of the record fails to show that a bill of exceptions was ever filed in the court below. Therefore we are precluded from reviewing matters that may only be brought to our attention by a bill of exceptions, which, among other things, includes an application for a change of venue (State v. Baird, 297 Mo. 219, 248 S. W. 596), and the sufficiency of the evidence to sustain the verdict.
There is in the file in this cause what purports to be a bill of exceptions and purports to be signed by the judge who tried the cause. It is a separate document, and it is not attached to the document or file of papers comprising the record proper. The purported bill of exceptions does not have appended or attached, nor does it contain, a certificate of the circuit clerk as to its genuineness, correctness, or authenticity. The purported bill of exceptions does not prove itself, and, in the absence of a certificate of the circuit clerk as to its authenticity, we are prohibited from considering the same or from passing on matters of exception or the merits of the cause. State v. White, 315 Mo. 1276, 288 S. W. 18. This is another reason why the purported bill...
To continue reading
Request your trial
-
State v. Bliss
...1276, 1278, 288 S.W. 18, 19 (3) (in banc), and cases cited; State v. Miller, 322 Mo. 1199, 1201, 18 S.W.2d 492, 493 (2); State v. Kelsay (Mo. Sup.) 18 S.W.2d 491 (3); State v. Harbeston, 330 Mo. 799, 800 (1), 51 533, 534 (1); State v. Ross (Mo. Sup.) 69 S.W.2d 293, 294 (1); State v. Corey (......
-
State v. Ragg
...authenticated copy of the bill of exceptions not being before this court, there is nothing for review except the record proper. State v. Kelsay, 18 S.W.2d 491; State v. Carel, 69 S.W.2d 296; State Corey, 69 S.W.2d 298; State v. Mele, 71 S.W.2d 718; State v. Thomas, 53 S.W.2d 266; State v. R......
-
State v. Ross
... ... was not on file in said clerk's office when said ... transcript was made. In these circumstances it is well ... settled that we cannot consider the purported bill of ... exceptions as part of the record. As we said in State v ... Kelsay, 18 S.W.2d 491, on similar facts: ... ... "The purported bill of exceptions does not prove itself, ... and, in the absence of a certificate of the circuit clerk as ... to its authenticity, we are prohibited from considering the ... same or from passing on matters of ... ...
-
State v. Nidiffer
... ... not contain any entry with reference to the filing of the ... bill of exceptions. Where the record itself does not show ... that the bill of exceptions has been filed there is nothing ... before the court to review save the record proper. State ... v. Kelsay, 18 S.W.2d 491; State v. Barr, 34 ... S.W.2d 477; State v. Miller, 18 S.W.2d 493. (2) The ... bill of exceptions is not authenticated by the clerk, as ... required by statute, and there is nothing before the court ... but the record proper. The bill of exceptions is not ... authenticated by ... ...