State v. Lando

• Decision Date: 12 December 1927
• Docket Number: No. 28317.,28317.
• Citation: 300 S.W. 767
• Parties: STATE v. LANDO.
• Court: Missouri Supreme Court

300 S.W. 767

STATE v. LANDO.

No. 28317.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

John Lando was convicted of feloniously transporting hootch, moonshine, and corn whisky, and he appeals. Affirmed.

James C. McDowell, of Charleston, and Walter Burch and Arthur L. Oliver, both of St. Louis, for appellant.

North T. Gentry, Atty. Gen., and David P. Janes, Asst. Atty. Gen., for the State.

HIGBEE, C.

The appellant and his wife and Adolph Jarosik were charged by information in the circuit court of Scott county with having, on or about April 11, 1926, at the county of Scott, feloniously transported hootch, moonshine, and corn whisky. On August 9, 1926, the defendants jointly filed a petition with supporting affidavits for a change of venue on account of the bias and prejudice existing against them in the counties of Scott and Mississippi, as provided by Laws 1921, p. 204, § 1361. The court ordered a &singe of venue to Mississippi county, where, on October 13, 1926, the defendant moved the court to abate and cease all proceedings for the reason that the court was without jurisdiction, except to remand the cause to the circuit court of Scott county, because the circuit court of Scott county erred in refusing to grant a change of venue to Cape Girardeau county. This motion being overruled, the court overruled a motion to quash the indictment, meaning, we assume, the information. Thereupon a motion for a continuance was overruled, and the cause was set for trial on October 29, 1926. On that day a second application for continuance and a motion to suppress evidence were overruled. Thereupon the defendant entered a plea of not guilty, was granted a severance, and on a trial to a jury was found guilty as charged, his punishment assessed at imprisonment in the penitentiary for two years, and he appealed.

1. No term bill of exceptions was filed when the circuit court of Scott county granted a change of venue to Mississippi county. Consequently the appellant's exception to the action of the court in refusing to award the change to Cape Girardeau county, the remaining county in the circuit, died with the term; the exception not having been kept alive by a term bill. Richardson v. Schuyler County Agricultural & Mechanical Ass'n., 156 Mo. 407, 411, 57 S. W. 117; Reineman v. Larkin, 222 Mo. 156, 166, 121 S. W. 307; State ex rel. Kimbrell v. People's Ice, Storage & Fuel Co., 246 Mo. 168, 198, 151 S. W. 101.

"Laws 1911, p. 139, did not abolish the necessity for term bills of exceptions." Kline Cloak & Suit Co. v. Morris, 293 Mo. 478, 493, 240 S. W. 96, 99; State v. Zugras, 306 Mo, 492, 496, 267 S. W. 804.

The order awarding the change of venue to Mississippi county was therefore res adjudicata. City of St. Louis v. Chas. F. Querl Lumber Co., 277 Mo. 167, 210 S. W. 21; State v. Windsor (Mo. App.) 289 S. W. 663; State v. Mischler (Mo. App.) 289 S. W. 669.

2. The motions above referred to, as also the instructions of the court and the defendant's motion for new trial, are found in the record proper, but they are not made a part of the bill of exceptions. They are not mentioned, nor is there an exception saved in the bill of exceptions to any ruling thereon, nor to giving or refusal of an instruction. These are not a part of the record, unless preserved in the bill of exceptions. Althoff v. St. Louis Transit Co., 204 Mo. 166, 172, 102 S. W. 642.

"The record proper by law is the petition, summons, and all subsequent pleadings, including the verdict and judgment, and that the law has made it our duty to examine and revise, and, if any error is apparent on the face of these pleadings, which constitute the record, we will reverse the cause, whether any exceptions were taken or not." St. Louis, K. C. & C. Ry. Co. v. Lewright, 113 Mo. 660, 669, 21 S. W. 210, 212, quoting Bateson v. Clark, 37 Mo. 31.

The appeal is therefore before us on the record proper.

3. The defendant demurred to the indictment, meaning, no doubt, as we have said, the information, for the reason that the allegations in said indictment fail to state facts sufficient to constitute the commission of any offense, and that the Act of the General Assembly of April 3, 1923, under which this indictment is returned, is unconstitutional and in violation of section 28 of article 4 of the Constitution of the state of Missouri.

The information charges that at the time and place mentioned the defendants unlawfully and feloniously did transport hootch, moonshine, and corn whisky. Appellant argues that the information attempts to charge in one count each of three named persons with the unlawful transportation of three separate and distinct articles:...