State v. McO'Blenis

• Decision Date: 31 March 1855
• Citation: 21 Mo. 272
• Parties: THE STATE, Defendant in Error, v. McO'BLENIS, Plaintiff in Error.
• Court: Missouri Supreme Court

21 Mo. 272

THE STATE, Defendant in Error,

v.McO'BLENIS, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1855.

1.A court has no authority to give a party time until the next term to file a bill of exceptions, without the consent of both parties entered of record.

2.No execution for costs can issue in a criminal case, while an appeal, with stay of proceedings, is pending.

3.Where several parties are jointly indicted, each party is only liable for his own costs.

4.Judgment for costs in a criminal case cannot be remitted by pardon.

Error to St. Louis Criminal Court.

At the June term, 1852, of the St. Louis Criminal Court McO'Blenis and fourteen others were jointly indicted for riot.At the January term, 1853, trial was had, which resulted in the conviction of McO'Blenis, McBride, and five other of the defendants, and a fine for different amounts was assessed against each.The defendants, McO'Blenis and McBride, filed their motion for a new trial, which was overruled, and they prayed an appeal to the Supreme Court.The appeal was granted, with stay of proceedings, and on motion, time was given the defendants until the next term to file their bill of exceptions.At the next term, on the 14th of March, 1853, a bill of exceptions was filed.On the 19th of March, McO'Blenis filed the pardon of the governor, releasing him from the payment of the fines and costs assessed in the cause, except the fine assessed against himself, and his pro rata proportion of the costs, and the court made an order setting aside the appeal as to him.At the same time, he filed his motion for a separate taxation of the costs incurred by him.The motion was overruled, and an execution was ordered to issue against him for the fine and all the costs incurred in the cause.On the 17th of December, 1853, a rule was granted by the court upon the state, to show cause why the execution should not be quashed.After a hearing, the rule was discharged, and the defendant filed his bill of exceptions, and brought the case here by writ of error.

The record also contains the bill of exceptions filed on the 14th of March, 1853, upon which, upon the appeal of McBride, the judgment of the Criminal Court was reversed by the Supreme Court.(19 Mo. Rep. 239.)

U. Wright and Barrets, for plaintiff in error.

1.The appeal granted at the January term of the Criminal Court, suspended the execution of the judgment.2.The order setting aside the appeal was void, as after the appeal was granted, the Supreme Court alone had jurisdiction of the cause.3.The judgment having been reversed by the Supreme Court, there was nothing upon which execution could issue.4.If it be said that the reversal only operated upon the judgment as to McBride, then it is submitted that the whole record is now here by writ of error, showing on its face that the judgment is erroneous as to McO'Blenis for the same reasons for which it was reversed as to McBride.

Clover,(circuit attorney,) for the State.

SCOTT, Judge, delivered the opinion of the court.

1.The records present us with two cases for our revision.The one contains the original case against O'Blenis on an indictment for a riot, and the other, a case growing out of the first, on a motion to retax the costs.

We will notice these in their order.When the appeal was granted to O'Blenis, on the 26th of February, 1853, and a stay of proceedings ordered, that the opinion of the Supreme Court might be taken, it appears that on motion, time was given him till the next term of the court to file his bill of exceptions.We consider that the court had no authority to make this order, without the consent of both parties entered of record.Unless a bill of exceptions is signed during the term at which a cause is tried, it cannot be filed subsequently, without the consent of both parties to the suit.The bill of exceptions not having been taken within the proper time, it cannot be noticed; and as the error relied on for a reversal of the judgment appears only on the face of the bill, there is no error in the record of the first trial of which O'Blenis can now avail himself.This point was not made in the case of McBride, who was jointly convicted with O'Blenis for the riot, and whose case was afterwards in this court.This much as to the first case.

2.As to the second, from what has been said, it would appear that the cause out of which the execution for costs had its origin, was pending in the Supreme Court, when the writ issued; for the appeal and order of suspension stayed the proceedings until the appeal was disposed of in the Supreme Court.The want of a bill of exceptions did not impair the effect of the appeal in stopping the proceedings of the court below, but would only render it unavailable on the trial, as there would be no evidence of any error in the record of the inferior court.

This, then, will reverse the...