State v. Lynn

• Decision Date: 09 January 1945
• Docket Number: No. 26706.,26706.
• Citation: 184 S.W.2d 760
• Parties: STATE v. LYNN.
• Court: Missouri Court of Appeals

184 S.W.2d 760

STATE v. LYNN.

No. 26706.

St. Louis Court of Appeals. Missouri.

January 9, 1945.

Appeal from Circuit Court, Jefferson County; Norwin D. Houser, Special Judge.

"Not to be reported in State Reports."

James D. Lynn was convicted of a common assault, and he appeals.

Affirmed.

R. E. Kleinschmidt, of Hillsboro, for appellant.

W. Oliver Rasch, Pros. Atty., of Festus, for respondent.

BENNICK, Commissioner.

By information filed in the Circuit Court of Jefferson County, defendant, James D. Lynn, was charged with assault with intent to kill, and upon a trial was found guilty of the lesser offense of common assault, and his punishment assessed at a fine of $25. Following an unavailing motion for a new trial, he applied for and was granted an appeal to this court.

At the outset of the case, a question has arisen as to whether the bill of exceptions is properly before us so as to permit a review of the assignments of error, which relate in their entirety to matters occurring at the trial.

The appeal was granted on February 19, 1944; and on June 20, 1944, there was a transcript of the record filed in this court which was concededly regular in every respect except that it did not include the bill of exceptions. However, accompanying the transcript was a letter from the circuit clerk in which he called attention to the absence of the bill of exceptions which was then "in the making," and advised that defendant's attorney had suggested that the transcript (without the bill of exceptions) be transmitted to this court so that the appeal might reach us before the time expired.

It will thus be observed that the transcript (without the bill of exceptions) was transmitted to this court within the period of six months from the time the appeal was granted (Sec. 4152, R.S.Mo.1939, Mo. R.S.A. § 4152), so that even though the bill of exceptions should not be before us, the case is in any event here on the record proper. In other words, the question is not one of whether the appeal shall be dismissed, but of what the scope of our review may be.

Notwithstanding the delay in the filing of the bill of exceptions, it appears without dispute that defendant's counsel, upon taking the appeal, not only ordered the bill of exceptions immediately thereafter, but from time to time contacted the reporter regarding the state of its preparation, requesting that it be completed as promptly as possible, and in all events within the period of six months allowed by law for the perfection of the appeal. It further appears that the reporter did prepare the bill of exceptions as soon as was consistent with his other official duties; that he delivered the same to defendant's counsel the latter part of August, 1944; and that his failure and inability to have completed the same sooner had been in nowise contributed to by either defendant or his counsel.

Upon receiving the bill of exceptions from the reporter, defendant's counsel at once examined it and made the necessary corrections, and then turned it over to the prosecuting attorney, who retained it for a week or ten days before approving and signing it and returning it to defendant's counsel. It was thereupon sent to the special judge at his home in Perryville, Missouri (the regular judge of the circuit having been disqualified); and on September 13, 1944, was signed by the special judge and returned to defendant's counsel. On September 20, 1944, it was filed in the circuit court and made a part of the record of the cause; and on October 6, 1944, it was filed in this court, duly authenticated by the certificate of the clerk of the circuit court. This was of course after the expiration of the period of six months, but prior to the setting of the case in this court, which had been placed on the docket for November 16, 1944, during our October, 1944, term, which was the term next following the time when the transcript (without the bill of exceptions) had been filed in this court by way of perfecting the appeal.

While in this case where the appeal did not operate as a stay of proceedings, it was defendant's own duty, since he desired a review of matters of exception, to see to it that the record transmitted to this court was a full transcript of the record in the cause including the bill of exceptions, it is of no fatal consequence that the bill of exceptions was transmitted separately from the transcript of the record proper, nor that it reached this court after the expiration of six months from the time the appeal was granted, if defendant shows to the satisfaction of the court that good cause existed for the delay. State v. Hudson, 314 Mo. 599, 285 S.W. 733.

Upon the question of good cause, the facts we have recited speak plainly for themselves. The delay was in nowise due to the fault of defendant or his counsel, but was purely the result of a state of circumstances for which neither one of them was personally responsible. Moreover, there was no attempt by the prosecuting attorney to question the perfection of the appeal until the matter was suggested during oral argument, when the court became concerned as to the scope of its review. On the contrary, he joined in briefing the assignments of error, notwithstanding the fact that when he approved the bill of exceptions, he was as fully informed as defendant's counsel that the period of six months had even then expired. As defendant points out, the submission in this court was in nowise delayed by the belated perfection of the appeal; and with due regard for all extenuating circumstances, we can see no basis for any other conclusion than that the bill of exceptions is here for our review.

The precise charge against defendant was that on May 20, 1943, he had made an assault with a loaded revolver upon one Lark Chandler, in De Soto, Missouri.

It appears that Chandler, at the time of the alleged assault, was the pastor of an outlying church in De Soto of which defendant and his wife were members. He had made his home in De Soto during the period of his pastorate, but on May 3rd had obtained employment in a war plant in St. Louis, from whence he returned to De Soto over week-ends to hold services at his church.

The state's evidence tended to show, in brief, that in the early afternoon of the day in question, Chandler had received a telephone message at his place of work in St. Louis, requesting that he come to De Soto to conduct a funeral service for some undisclosed person between 7:00 and 8:00 o'clock that evening; that pursuant to the call, he drove down from St. Louis in an automobile, and arrived in De Soto about 7:15 o'clock; that on driving out to the cemetery, he observed that he was being followed by another automobile; that his automobile became stuck in the mud at the edge of a driveway in the cemetery, and was later pulled out by one Henderson, who came to his aid when he went back into town to solicit help; that while Henderson was engaged in fastening the chain to his automobile, defendant came upon the scene with a revolver in his hand, and remarked, "Tough luck, buddy"; that after his automobile had been pulled back on the driveway, he backed it up to permit Henderson to drive out of the gate, at which moment defendant walked over within ten or twelve feet of him, and said, "You had better watch out, you are going to get into it"; and that as he opened the door of his automobile in an effort to get out, defendant discharged his revolver, striking the left front fender of the car, which was then at a standstill, with the motor running.

Other state's witnesses were Marie Gillis, the telephone operator at the plant in St. Louis where Chandler was employed, who testified that she received the message at her switchboard, and then gave it to one of the men in the shop to take to Chandler; and Arthur McMullin, who succeeded Chandler as pastor of the church in De Soto, and who testified that the next day after the affray, he called at defendant's home and talked over the occurrence with defendant, who "patted" his revolver, and after first remarking, "I took one shot at him in the cemetery," later said, "I could have killed him, but I shot at the tire."

Defendant took the stand in his own behalf, and in addition had some eleven other witnesses, who corroborated his testimony in one way or another with respect to the circumstances involved in the occurrence.

The whole tenor of the defense was to the effect that the difficulty between Chandler and defendant had grown out of the relations existing between Chandler and defendant's wife.

According to defendant's version of the facts, it would appear that Chandler, about the time he prepared to leave De Soto to accept employment in St. Louis, went to the local post office and endeavored to rent a lock box in the name of "Miss Mildred Dickens", whom he identified as "an old crippled lady" who lived in his immediate neighborhood, but who had never been heard of by the postmaster or any of his clerks, although, through their experience in handling the mails, they were naturally well informed of the identity of practically every person residing in that community. Indeed, if defendant's evidence was to be believed, there was no such person as "Miss Mildred Dickens," but instead it was Chandler's plan to address his letters to defendant's wife by that name, and to have a private lock box in the post office at De Soto to which she would have access for the purpose of receiving his correspondence. As a matter of fact, the postmaster refused to rent the box in view of the peculiar circumstances under which the request was made, but being apparently under no misapprehension about the identity of the person for whom the mail was intended he thenceforth placed all letters addressed to "Miss Mildred Dickens" in the Lynn box in general delivery, where they were always called for by Mrs. Lynn herself, since defendant, at that particular time, was getting his own personal mail by...