State v. LaBreyere
| Decision Date | 28 October 1933 |
| Docket Number | No. 33113.,33113. |
| Citation | 64 S.W.2d 117 |
| Parties | THE STATE v. WILLIAM LaBREYERE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Washington Circuit Court. — Hon. Will H.D. Green, Judge.
AFFIRMED.
W.A. Brookshire for appellant.
Roy McKittrick, Attorney-General, and Frank W. Hayes, Assistant Attorney-General, for respondent.
By information in the Circuit Court of Washington County the defendant was charged with robbery in the first degree for having robbed the Bank of Caledonia, in said county, on August __, 1931. There were two trials. At the first trial defendant was convicted and his punishment was assessed at ten years' imprisonment in the penitentiary. The trial court sustained defendant's motion for a new trial. At the second trial he was again convicted and the same punishment was assessed. From sentence and judgment on that verdict he has appealed.
The robbery, committed by means of a deadly weapon, a revolver, was clearly proved as charged and was not disputed, the controverted question being defendant's participation therein. Two men perpetrated it. One, Fred Conway, later was apprehended and pleaded guilty. This defendant was identified at the trial of this case as one of the robbers by the two bank officers present when the bank was robbed and by several other witnesses whose testimony tended to prove his participation in the crime. There can be no question as to the sufficiency of the evidence to make a submissible case and to sustain the verdict. Defendant denied participation in or presence at the robbery and introduced evidence tending to show that another man who closely resembled him in appearance was a close friend of Conway's and was seen with the latter shortly preceding and following the robbery, the inference being that such other man was Conway's accomplice and that defendant was mistaken for him by the identifying witnesses. For the disposition we must make of the case the foregoing is a sufficient statement of the facts.
[1] The matters principally relied upon for reversal are the refusal of the trial court to grant defendant a continuance and its refusal to grant a new trial on the ground of alleged newly discovered evidence. All alleged errors complained of are matters of exception which can be considered on appeal only if they have been preserved and called to the trial court's attention by a timely motion for new trial. Such timely motion is not shown to have been filed in this case.
[2] From the transcript of the record proper, the appropriate repository for such facts, we learn that the verdict was returned on April 8, 1932; that on the same day the court, by order of record, gave defendant ten days in which to file motion for new trial, all the time that could be allowed by law, Section 3735. Revised Statutes 1929 (4 Mo. Stat. Ann., p. 3275); and that on April 30, 1932, twenty-two days after verdict and twelve days after the expiration of the time allowed by the court, the motion for new trial was filed. There is a statement, not purporting to be a record entry, in the bill of exceptions that "within the time granted as aforesaid (the ten days) counsel for defendant filed his motion for a new trial, which is as follows:" Then is set out the only motion for new trial appearing in the record. After the caption it begins: "Comes now the defendant with leave of court and files his amended motion for a new trial and states," etc. (Italics ours.) If it was in fact an amended and not the original motion the original is not in the bill of exceptions nor is its filing anywhere shown, and it must have been abandoned as no reference to it appears in the record. The motion set out in the bill of exceptions is followed in that instrument by a copy of the record...
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State v. La Breyere
...64 S.W.2d 117 333 Mo. 1205 The State v. William LaBreyere, Appellant No. 33113Supreme Court of MissouriOctober 28, 1933 ... Appeal ... from Washington Circuit Court; Hon. Will H. D ... Green, Judge ... ... Affirmed ... W.A ... Brookshire for appellant ... Roy ... ...