State v. Legan

• Decision Date: 05 March 1935
• Docket Number: No. 33950.,33950.
• Citation: 80 S.W.2d 122
• Parties: STATE v. LEGAN.
• Court: Missouri Supreme Court

80 S.W.2d 122

STATE v. LEGAN.

No. 33950.

Supreme Court of Missouri, Division No. 2.

March 5, 1935.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

Bertram Legan was convicted of unlawfully operating a truck carrying freight for hire on public highway without certificate of convenience and necessity, and he appeals.

Cause transferred.

Charles Farrar and Nelson B. Evans, both of Buffalo, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

TIPTON, Presiding Judge.

This is an appeal from a judgment rendered in the circuit court of Greene county, Mo., convicting the appellant of willfully and unlawfully operating a truck carrying freight for hire on a public highway without first applying for and having obtained a certificate of convenience and necessity from the Public Service Commission. A jury was waived and the cause was submitted to the court, who found the appellant guilty of the misdemeanor as charged in the information and assessed his punishment at a fine of $50. In appellant's motion for a new trial, he has raised a constitutional question in regard to the admission of evidence, and the appeal was granted to this court.

The record shows that on April 21, 1934, the court found the appellant guilty and immediately thereafter sentenced him. This shows that the appellant was not allowed allocution. Allocution in felony cases is mandatory. Section 3713, R. S. (Mo.) 1929 (Mo. St. Ann. § 3713, p. 3263). However, in misdemeanor cases, it is merely directory and section 3714, R. S. (Mo.) 1929 (Mo. St. Ann. § 3714, p. 3264), provides that the failure to afford allocution shall not invalidate the judgment or sentence. The appellant made no objection or exception to the action in pronouncing judgment before the motion for a new trial was filed. Under this condition of the record, the trial court cannot be convicted of error in failing to grant allocution to the appellant. State v. Turner (Mo. Sup.) 273 S. W. 739; State v. Eisenhart (Mo. App.) 294 S. W. 422.

Section 3735, R. S. (Mo.) 1929 (Mo. St. Ann. § 3735, p. 3275), provides that motion for a new trial must be filed before judgment. "The record must affirmatively show that the motion for new trial was filed in time." State v. La Breyere, 333 Mo. 1205, 64 S.W.(2d) 117, loc. cit. 118. The record fails to show that the motion for a new trial was filed before sentence, and we therefore cannot review anything but the record proper. State v....