State v. McCarver

• Decision Date: 31 January 1893
• Citation: 20 S.W. 1058,113 Mo. 602
• Parties: STATE v. McCARVER.
• Court: Missouri Supreme Court

20 S.W. 1058

113 Mo. 602

STATE v. McCARVER.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

CRIMINAL LAW — APPEAL — LOSS OF EVIDENCE — REVERSAL.

Where a defendant convicted of murder duly filed his bill of exceptions, in skeleton form, together with a copy of the evidence, but was unable to perfect his appeal because the clerk, in violation of his duties, refused to make a transcript, the judgment will be reversed, on the cause being subsequently brought up on writ of error, where it is then discovered that the copy of the evidence has been lost or stolen without fault on the part of defendant or his attorney, and it appears that he is unable to procure another copy, because the stenographer has destroyed his notes, and has made every effort to supply the evidence.

Error to circuit court, St. Francois county; JAMES D. FOX, Judge.

Indictment of John B. McCarver for murder. Defendant was convicted, and brings error. Reversed.

H. D. Ledbetter and M. R. Smith, for plaintiff in error. The Attorney General, for the State.

SHERWOOD, J.

At the November term, 1887, of the St. Francois circuit court, the defendant was indicted for the murder of one George Stone. At the May term, 1888, the defendant was put upon his trial, which resulted in his being convicted of murder in the second degree, — his punishment being assessed at 25 years in the penitentiary, — and, being sentenced in accordance with the verdict and judgment, is now confined in conformity to his sentence. Before the incarceration of the defendant in the penitentiary, a motion for new trial was filed and overruled, and, upon proper steps taken, the defendant was granted an appeal to this court; and during the same term, with the consent of Merrill Pipkin, the then prosecuting attorney, leave was entered of record, granting the defendant until August 1, 1888, to file his bill of exceptions, which was filed within time. This bill was in skeleton form, and with it was filed a type-written copy of the evidence, prepared by the court stenographer. "Owing to defendant's poverty and inability to pay for the transcript for the supreme court, which was long," the circuit clerk, John C. Alexander, "declined and refused to make the same until his fees therefor were paid or guarantied to him, and in consequence thereof the appeal was not perfected." The endeavor to obtain the transcript, and the abandoning of the appeal in consequence of the refusal of the circuit clerk to make out the same, all occurred in the year 1888. During the two succeeding years, nothing was done. Then the cause was brought to this court by a writ of error; but, when it reached here, it was discovered that the testimony in the cause did not accompany the skeleton bill. A writ of certiorari was then awarded to the lower cour...