State v. Lawler

• Decision Date: 18 May 1909
• Citation: 220 Mo. 26,119 S.W. 639
• Parties: STATE v. LAWLER.
• Court: Missouri Supreme Court

119 S.W. 639

220 Mo. 26

STATE v. LAWLER.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

1. CRIMINAL LAW (§ 1092)—BILL OF EXCEPTIONS—TIME FOR FILING.

All exceptions taken during the trial of the cause must be preserved in a bill of exceptions filed during the term of the court at which they were taken or within such time after its expiration as the court may grant.

2. CRIMINAL LAW (§ 1092)—BILL OF EXCEPTIONS—TIME FOR FILING.

Where a motion for new trial was filed at the trial term and continued over and not determined till the next term, exceptions could be preserved in a bill filed at the term when the motion is overruled.

3. CRIMINAL LAW (§ 1093)—PRESERVATION OF EXCEPTIONS—MOTION FOR NEW TRIAL.

To have exceptions reviewed, a motion for a new trial must appear in the bill as overruled and exception taken to the decision.

4. CRIMINAL LAW (§ 1092)—BILL OF EXCEPTIONS—TIMES OF FILING.

In a case tried at the October term, 1906, defendant's motion for a new trial, filed in due time, was overruled on November 3d by an order which was set aside on November 5th. On November 8th, the motion was again overruled, and on November 12th defendant filed a motion in arrest, which was continued at his request till the following December term, at which it was overruled. No bill of exceptions was filed at the October term, nor was any leave afterward granted to file the same, though on February 2, 1907, an extension of time for filing the bill was granted. Held, that even had the bill been filed at the December term, in the absence of any leave at the October term to do so, it would have been too late, as a continuance of the motion in arrest would not have saved matters of exception, and hence there was no valid bill of exceptions for consideration.

5. CRIMINAL LAW (§ 1094)—REVIEW ON APPEAL—ABSENCE OF VALID BILL OF EXCEPTIONS.

In the absence of a valid bill of exceptions, nothing but the record proper can be considered on appeal.

6. LARCENY (§ 38)—REQUISITES OF INDICTMENT—LARCENY IN "DWELLING HOUSE."

The phrase "dwelling house," in the statutes against larceny in a dwelling house, has the same significance as in burglary, and where there is no allegation in an indictment therefor of the ownership of the house, or any other or further identification thereof, it is insufficient.

7. LARCENY (§ 28)—INDICTMENT FOR GRAND LARCENY—SUFFICIENCY.

An indictment for larceny stating that the money stolen was personal property of a person named, and was of the value of $160, and that defendant did feloniously steal, take, and carry away the same, with intent then and there to deprive the owner of the use thereof, and convert the same to his own use, against the peace and dignity of the state contains every substantial allegation essential to a good indictment for grand larceny.

8. INDICTMENT AND INFORMATION (§ 120)— REQUISITES AND SUFFICIENCY—REJECTION OF SURPLUSAGE.

Where an indictment for larceny "in a dwelling house" contains every substantial allegation essential to a good indictment for grand larceny, but does not properly describe the building so as to bring the charge within the statute against larceny in a dwelling house, the quoted words may be rejected as surplusage, and the indictment remain good for grand larceny.

9. CRIMINAL LAW (§ 881)—TRIAL—VERDICT— RESPONSIVENESS TO INDICTMENT.

A verdict finding defendant guilty as charged in the indictment is responsive thereto.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Dennis Lawler was convicted of larceny, and he appeals. Affirmed.

E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

GANTT, P. J.

At the April, 1906, term of the circuit court of St. Louis, the grand jury returned the following indictment: "State of Missouri, City of St. Louis—ss.: Circuit Court, City of St. Louis, April Term, 1906. The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Dennis Lawler on the seventeenth day of April, in the year of our Lord one thousand nine hundred and six, at the city of St. Louis aforesaid, one hundred and sixty dollars, lawful money of the United States, all of the value of one hundred and sixty dollars, all the money, goods, chattels and personal property of H. H. Hermann in a dwelling house then and there feloniously did steal, take and carry away, with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use, against the peace and dignity of the state. Rich M. Johnson, Assistant Circuit Attorney. A true bill.—W. J. Kinsella, Foreman." At the October, 1906, term of court, to which the case had been continued at his instance, defendant was duly arraigned, a jury regularly impaneled and sworn, and a trial had, which, on October 12, 1906, resulted in a verdict assessing defendant's punishment at two years in the penitentiary. On Wednesday, October 17, 1906, defendant filed his motion for new trial. On November 3, 1906, the motion for new trial was overruled. On the 5th day of November the order overruling the motion for new trial was set aside and the motion ordered refiled, and on November 8, 1906, the court again overruled the motion. On November 12, 1906, defendant filed his motion in arrest of judgment. On Saturday, December 1, 1906, the case, at defendant's request, was continued until the next (December) term of court. At the December term the motion in arrest of judgment was overruled, and on the 2d day of February, 1907, leave was given to file bill of exceptions on or before March 5, 1907. On February 21, 1907, the bill of exceptions in this case was filed.

The evidence shows that about midnight, April 17, 1906, a fire occurred near the corner of Manchester avenue and Papin street in the city of St. Louis, breaking out in and consuming a structure adjoining the residence and saloon building occupied by the prosecuting witness, H. H. Hermann. Hermann was awakened by his wife, and after arousing his family found defendant and a policeman in one of the rooms of his dwelling, their mission persumably being to apprise the occupants of their dangerous situation. The officer urged haste, and in defendant's presence Hermann stated that he "wanted to get his money," and the boxes containing the money charged to have been stolen by defendant were taken in his presence from a closet by Hermann. Defendant accompanied Hermann across the street to the residence of a Mrs. Baker, whither the Hermann children had gone after leaving the threatened building. The money was in cigar boxes, and consisted of $115 in bills and $55 in silver and nickels. The boxes were tied with "window strings." The money all belonged to the prosecuting witness, as charged in the indictment. Hermann, in defendant's presence, gave the boxes to his little daughter, Annie, who, in company with Mrs. Baker and defendant, took them into the hallway of the Baker residence. The daughter set the boxes in the hallway, and she and Mrs. Baker passed into one of the rooms of the Baker suite to attend to some want of the child, leaving defendant in the hallway where the boxes had been placed. When...