State v. Librach

• Citation: 270 S.W. 284
• Decision Date: 19 March 1925
• Docket Number: No. 25623.,25623.
• Parties: STATE v. LIBRACH.
• Court: United States State Supreme Court of Missouri

270 S.W. 284

STATE v. LIBRACH.

No. 25623.

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Henry Librach was convicted of arson, and he appeals. Reversed and remanded.

Thos. J. Rowe, Jr., Henry Rowe, and Michael Kinney, all of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

Henry Librach was charged in an indictment in two counts, based on section 3288, R. S. 1919, with the crime of arson, in that he did on the 7th day of February, 1921, at the county of St. Louis, set fire to and burn a certain Buick automobile of the value of $1,500, the property of Henry Librach, with intent to defraud, damage, and prejudice the Union Insurance Society of Canton, Limited, the insurer of said automobile then insured against loss and damage by fire in the sum of $1,500 by said Union Insurance Society by a contract and policy of insurance, etc. The second count charges that Henry Librach, on February 7, 1921, at said county of St. Louis, burned the said automobile of the value of $1,500, with intent to defraud the American Automobile Insurance Company of St. Louis, the insurer of said automobile, which automobile was then insured by said last-named company by a contract and policy of insurance unto said Henry Librach against loss and damage by fire in the sum of $1,000. The defendant was found guilty of arson in the third degree, his punishment fixed by the verdict of the jury at imprisonment in the penitentiary for a term of three years, and he was sentenced accordingly. The defendant's demurrer to the evidence at the close of the case was overruled.

The evidence for the state tends to show that the defendant, on the night of February 7, 1921, set fire to and burned his Buick automobile, but there is no evidence in the record that it was insured against loss or damage by fire.

At the October term, 1923, of this court, the Attorney General filed suggestions in diminution of the record to the effect that in making out the transcript of the record the clerk of the circuit court omitted certain portions of the bill of exceptions relating to admissions made by the defendant at the trial that the automobile burned was covered by policies of insurance as stated in the indictment. In obedience to an order made by this court, the clerk has certified what purports to be admissions made at the trial as appear by "the court reporter's original shorthand notes in his record, and as transcribed by him in said cause, which were inadvertently omitted from the original bill of exceptions in said cause by said reporter " and consequently omitted in the transcript on appeal prepared by me."

1. A bill of exceptions when signed and filed becomes a part of the record; it imports verity. It can be amended and corrected on a proper showing like any other part of the record. Jackson v. Fulton, 87 Mo. App. 228, 235; Ross v. Railroad, 141 Mo. 390, 395, 38 S. W. 926, 42 S. W. 957. In Tipton v. Renner, 105 Mo. 1, 5, 16 S. W. 668, Judge Black said:

"It is the business of the judge who tried the case to say what evidence was introduced, and he cannot devolve this duty upon the clerk, the reporter, or counsel. It is perfectly plain that he cannot sign a bill as a true one until the parol evidence is written out and made a part thereof. He ought not to sign it until this is done, and, if he does sign the bill before such evidence is written out and inserted, the evidence must be disregarded in this court. It is just as important now that this...