State v. Knechtel

• Decision Date: 06 October 1942
• Docket Number: No. 26070.,26070.
• Citation: 164 S.W.2d 648
• Parties: STATE v. KNECHTEL.
• Court: Missouri Court of Appeals

164 S.W.2d 648

STATE v. KNECHTEL.

No. 26070.

St. Louis Court of Appeals. Missouri.

October 6, 1942.

Appeal from St. Louis Court of Criminal Correction, Division No. 1; James W. Griffin, Judge.

"Not to be reported in State Reports."

Charles Knechtel was convicted for failure to support his wife and child, and he appeals.

Judgment ordered reversed, and cause remanded.

Louis E. Trieseler, of St. Louis, for appellant.

James P. Finnegan, Pros. Atty., of St. Louis, for respondent.

HUGHES, Presiding Judge.

This purports to be an appeal by the defendant from a conviction in the St. Louis Court of Criminal Correction, Division No. 1, "On Charge of Failure to Support Wife and Child".

Although the Statute (Sections 12922 and 12942, R.S.1939, Mo.R.S.A. §§ 12922, 12942) enjoins upon the prosecuting attorney the duty to appear on behalf of the State in the St. Louis Court of Appeals, and prosecute or defend, as the case may require, all appeals and writs of error to which the State may be a party, there is no appearance in this Court on behalf of the State.

The appellant has undertaken to perfect an appeal to this Court by what is usually denominated a "short form transcript" as provided for in civil cases by Section 1194, R.S.1939, Mo.R.S.A. § 1194. Appeals in criminal cases can only be perfected by the filing of a full transcript in the appellate court as provided by Sections 4146 and 4147, R.S.1939, Mo.R.S.A. §§ 4146, 4147. State v. Hall, 312 Mo. 425, loc. cit. 445, 279 S.W. 102, 103; State v. Fox, Mo.App., 294 S.W. 730; State v. Harris, Mo.App., 289 S.W. 30; State v. Daily, Mo.App., 27 S.W.2d 753; State v. Underwood, Mo.App., 27 S.W.2d 1070; State v. Watson, Mo.App., 46 S.W.2d 1106; State v. O'Dell, Mo.App., 71 S.W.2d 490; City of St. Louis v. Pope, Mo.App., 129 S.W. 2d 106. And it is appellant's duty to see that the clerk prepares and certifies the record on appeal. State v. Kurant, Mo. App., 282 S.W. 737; State v. Pieski, 248 Mo. 715, 154 S.W. 747; State v. Tribbey, Mo.Sup., 50 S.W.2d 1017; State v. Ross, 334 Mo. 870, 69 S.W.2d 293.

The transcript filed in this Court begins with the following statement: "State of Missouri vs. Charles Knechtel. May 2nd, 1941. On charge of failure to support wife and child. The defendant is duly arraigned, pleads not guilty. Cause set for May 15th, 1941. Defendant enters into bond with Florence Sommers as security in the sum of five hundred ($500.00) dollars."

There is nothing showing what the information contained, or whether one was ever filed.

The above entry is followed by three orders of continuance, and then the record of June 12, 1941, showing a trial before the court, and the finding of the court in these words: "And the court, having heard the evidence, and being fully advised of and concerning the premises, doth find the defendant guilty of said charge and assesses his punishment at a term of one (1) year in the Workhouse of the City of St. Louis. Thereupon comes the defendant by his attorney and files a motion for new trial herein, and enters into bond pending said motion—said bond and said motion made returnable July 3d, 1941."

Then follows ten orders of continuance ending on November 14, 1941, when the motion for new trial was overruled, and final judgment entered which is as follows: "It is therefore considered and adjudged by the court that the said defendant for his said offense be imprisoned in the workhouse of the City of St. Louis, for a term of one (1) year, that he pay the costs herein approved and that he stand committed until this sentence be complied with."

The record then shows the formal sentencing of defendant, and affidavit for appeal and appeal bond, and defendant allowed ninety days to file bill of exceptions. The certificate of the clerk is that the record entries above outlined are "full, true and complete copy of the short form transcript in the cause".

We are precluded from considering the case on its merits because of the want of a full transcript of the proceedings in the trial court. There is among the files what purports to be the original bill of exceptions. It has no place here, and is not certified to by the clerk, and we have no right to consider it. The clerk is not authorized to send to the appellate court the original bill of exceptions, and it has been held by the Supreme Court that if he does so he would be in contempt of the trial court for so doing. State v. White, 315 Mo. 1276, 288 S.W. 18. The bill of exceptions does not prove itself, and, in the absence of a certificate of the clerk as to its authenticity and correctness we are precluded from considering the same and passing upon the merits of the case. State v. White, supra.

The information upon which the defendant was tried is not properly brought before us, hence we are not in a position to...