State v. Libby

• Decision Date: 14 May 1907
• Parties: STATE v. LIBBY.
• Court: Missouri Supreme Court

102 S.W. 641

203 Mo. 596

STATE v. LIBBY.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. CRIMINAL LAW—BILL OF EXCEPTIONS— AMENDMENT.

Where appellant failed to preserve by bill of exceptions any exception to certain rulings of the trial court, the bill cannot be amended by consent, as such an amendment can only be affected by a nunc pro tunc entry correcting the record.

2. SAME.

In order to justify a making of a nunc pro tunc entry correcting or amending a bill of exceptions, the record must in some way show facts authorizing such entries, and they cannot be made from the memory of the judge, nor on parol evidence from other sources.

Appeal from Circuit Court, Laclede County; Argus Cox, Special Judge.

Warren Libby was convicted of feloniously maiming another, and he appeals. Affirmed.

Don O. Vernon and J. T. Moore, for appellant. The Attorney General and N. T. Gentry, for the State.

FOX, P. J.

This cause comes to this court upon appeal by defendant from a judgment of the circuit court of Laclede county, Mo., convicting him of feloniously and willfully maiming and wounding one W. F. Parker. The record discloses that the appellant failed to preserve by bill of exceptions any exception to the action of the court in overruling his motion for a new trial. Therefore there is nothing before the court to review, except the record proper.

However, it is suggested that the bill of exceptions may be amended by agreement between the prosecuting attorney and the counsel for the appellant, and we have on file before us letters from defendant's counsel and from the prosecuting attorney and the judge who tried the case suggesting this amendment. It is sufficient to say of this suggestion that a bill of exceptions filed and made a part of the record cannot be amended by consent. Such bill of exceptions, when filed in the circuit court of Laclede county, became as much a part of the record proper of that court as any other entry made upon the records by the clerk of the court during any term of such court, and such bill of exceptions can only be changed or amended by a nunc pro tunc entry correcting such record, and the rule is well settled that, in order to justify the making of a nunc pro tunc entry correcting or amending a record, the record must in some way show, either from the judge's minutes, the clerk's entries, or some paper in the cause, the facts authorizing such entries. No such entries can be made from the memory of the judge, nor on parol proof derived from other sources. State v. Jeffors, 64 Mo. 378; Bank v. Allen, 68 Mo. 476; Belkin v. Rhodes, 76 Mo. 650; Saxton v. Smith, 50 Mo. 490; Fletcher v. Coombs, 58 Mo. 434; Wooldridge v. Quinn, 70 Mo. 370; Blize v. Castlio, 8 Mo. App. 294; Evans v. Fisher, 26 Mo. App. 546. Judge Burgess, in Ross v. Railway Co., 141 Mo., loc. cit. 395, 38 S. W. 926, 42 S. W. 957, citing the authorities to support the announcement of the rule, said: "It has been uniformly held by this court that, unless an exception be taken and preserved by bill of exceptions to the action of the court in overruling a motion for a new trial, there is nothing before the Supreme Court for review, save and except the record." State v. Murray, 126 Mo. 529, 29 S. W. 590; State ex rel. Dopkins v. Hitchcock, 86 Mo. 231; Wilson v. Haxby, 76 Mo. 345; Danforth v. Railroad, 123 Mo. 196, 27 S. W. 715; State v. Harvey, 105 Mo. 316, 16 S. W. 886; McIrvine v. Thompson, 81 Mo. 647; State v. Marshall, 36 Mo. 400.

The suggestion as to the amendment in the form of letters, as heretofore stated, furnishes no basis for the change or amendment of the bill of exceptions, and in fact the letter of the judge of the circuit court clearly indicates that there is no such condition of the record of the circuit court in Laclede county, in respect to the filing of this bill of exceptions, which would authorize the court to make a nunc pro tunc entry in respect to the exceptions to the action of the trial court in overruling the motion for a new trial, for it is suggested by Judge Cox, who tried the case, that the amendment or change of the...