State v. Little
| Decision Date | 23 February 1923 |
| Docket Number | No. 24124.,24124. |
| Parties | STATE v. LITTLE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.
Luther Little was convicted of second degree murder, and he appeals. Affirmed.
E. A. Mason, of Jackson, for appellant.
Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.
Convicted of murder in the second degree for the killing of Willis Martin at Cape Girardeau, defendant was sentenced in accordance with the verdict of the jury to imprisonment in the Penitentiary for a term of 25 years and has appealed.
There is filed in this court a document intended for a bill of exceptions in the case, but the same does not purport to be signed, sealed, allowed, and ordered tiled by the trial judge. The complete transcript of the record and proceedings certified to by the circuit clerk as containing all the record entries and proceedings in the case fails to show that any bill of exceptions was filed at any time. Nor does a certificate from the clerk anywhere appear either in the transcript or in the purported bill of exceptions showing that such bill of exceptions was ever filed in the trial court.
Section 4103, R. S. 1919, provides that, when the appeal does not operate as a stay of proceedings, as it does not in the case at bar, because not a capital case, and the trial court made no order for such stay (section 4088, R. S. 1919), the transcript shall be made out, certified, and returned on the application of appellant, as in civil cases. It is the personal duty of the appellant to see that the transcript is not only filed in time, but that it is in proper form and contains the necessary record entries and proceedings. State v. Pieski, 248 Mo. 715, 154 S. W. 747; State v. Piersol (Mo. Sup.) 210 S. W. 58; State v. Moulton, 262 Mo. 137, 170 S. W. 1111; State v. Conners, 258 Mo. 330, 167 S. W. 429.
Before a proffered bill of exceptions can be considered by this court upon appeal, a record entry in term time or a certificate of the action of the clerk in vacation must appear in the transcript of the proceedings showing the filing of such bill of exceptions in the trial court. Such bill of exceptions does not prove itself.
Under the provisions of section 4039 and 4103, R. S. 1919, the rule in civil cases applies in criminal cases. The transcript of the record and proceedings fails to show the filing of the bill of exceptions in the trial court, and we cannot consider it here. Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825; State v. Harris, 121 Mo. 445, 26 S. W. 558; Pope v. Thomson, 66 Mo. 661; Dinwiddie v. Jacobs, 82 Mo. 195; St. Charles ex rel. Budd v. Deemar, 174 Mo. 122, 73 S. W. 469; Bower v. Daniel, 198 Mo. 289, loc. cit. 317, 95 S. W. 347; Wilson v. Railroad Co., 167 Mo....
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State v. Barbour
...General, and Ernest Hubbell, Assistant Attorney General, for respondent. (1) Record proper. State v. Cantrell, 142 S.W.2d 1057; State v. Little, 248 S.W. 926. (2) The Secs. 4440, 4448, 4456, R. S. 1939. (3) Verdict and judgment. (a) Secs. 4056, 4064, R. S. 1929; State v. North, 85 S.W.2d 47......
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...upon the merits of the case. State v. Brown (Mo. Sup.) 279 S. W. 93; State v. Keyger (Mo. Sup.) 253 S. W. loc. cit. 364; State v. Little (Mo. Sup.) 248 S. W. 926; Bower v. Daniel, 198 Mo. loc. cit. 317, 318, 95 S. W. 347; St. Charles ex rel. v. Deemar, 174 Mo. 122, 73 S. W. 469; Butler Coun......
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State v. Parker
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