State v. Miller

• Decision Date: 20 June 1905
• Citation: 189 Mo. 673,88 S.W. 607
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

88 S.W. 607

189 Mo. 673

STATE v. MILLER.

Supreme Court of Missouri, Division No. 2.

June 20, 1905.

1. CRIMINAL LAW—MOTION FOR NEW TRIAL— DENIAL—REVIEW—BILL OF EXCEPTIONS.

Where no bill of exceptions was filed to an order denying a new trial in a criminal case during the term at which the motion was overruled, and there was no extension of time given to file the same, the overruling of such motion cannot be reviewed.

2. SAME—AFFIDAVIT FOR APPEAL—FAILURE TO FILE—MOTION TO DISMISS.

A motion to dismiss an appeal in a criminal case or strike the same from the docket because no affidavit for an appeal was filed, not made until after the case had been submitted on the merits, was too late.

3. LOTTERIES—"POLICY"—VERDICT.

In a prosecution under Rev. St. 1899, § 2219, prohibiting any person from establishing a "policy as a business and avocation," a verdict finding "the defendant guilty of aiding and assisting in making and establishing a policy," and assessing his punishment, was fatally defective for failure to find that he established a policy "as a business and avocation.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Louis Miller was convicted of establishing a "policy as a business," and he appeals. Reversed.

Morton Jourdan, for appellant. H. S. Hadley, Atty. Gen., and Frank Blake, for respondent.

FOX, J.

This cause comes here upon appeal by defendant from a judgment of conviction, in the circuit court of the city of St. Louis, upon an indictment charging defendant with a violation of the provisions of section 2219, Rev. St. 1899.

The record in this cause discloses that on March 26, 1904, being a part of the February term of the circuit court of the city of St. Louis, defendant was put upon his trial before a jury duly impaneled for the offense charged in the indictment, and they returned a verdict of guilty, in the following form:

"State of Missouri vs. Louis Miller. On Indictment for Establishing a Policy. We, the jury in the above-entitled cause, find the defendant guilty of aiding and assisting in making and establishing a policy, and assess the punishment at 6 months in the city jail. John J. Sheehaw, Foreman." On March 30, 1904, during said term of court, defendant filed his motion for new trial; on April 1, 1904, said motion for new trial was overruled. On April 2, 1904, defendant filed his motion in arrest of judgment, and this motion was continued to the April term, 1904, of said court.

There is an entire absence of any disclosure in this record that the action of the court in overruling the motion for new trial was preserved by bill of exceptions during the term of court at which the motion was overruled, nor was there any leave given to file it later. It is clear that timely objections and...