State v. Porter

• Decision Date: 05 March 1935
• Docket Number: No. 33811.,33811.
• Parties: STATE v. PORTER.
• Court: Missouri Supreme Court

81 S.W.2d 316

STATE v. PORTER.

No. 33811.

Supreme Court of Missouri, Division No. 2.

March 5, 1935.

Rehearing Overruled March 30, 1935.

Appeal from Circuit Court, Grundy County; A. G. Knight, Judge.

Lee Porter was convicted of felonious assault, and he appeals.

Affirmed.

H. P. Lauf and John O. Bond, both of Jefferson City, for appellant.

Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Appellant appeals from a conviction and sentence of three years' imprisonment on a charge of felonious assault.

The record proper in the instant case shows that the verdict was returned into court on July 11, 1933; that, without objection made or exception taken, appellant, in the presence of his counsel, was accorded allocution, and judgment and sentence were pronounced on July 12, 1933; that on July 14, 1933, the court, without any other action whatsoever, granted defendant five days from said date to file a motion for new trial; that on July 19, 1933, defendant filed a motion for new trial; that said motion for new trial was overruled on July 29, 1933; and that thereafter appellant was granted an appeal to this court.

Counsel for appellant here did not participate in the trial of the cause in the circuit court.

Respondent contends the case is here upon the record proper only, because appellant filed his motion for new trial after allocation, judgment, and sentence. Section 3735 R. S. 1929 (Mo. St. Ann. § 3735, p. 3275), requires motion for new trial to be filed "before judgment and within four days after the return of the verdict; * * * provided, * * * the court shall have power * * * to extend the time * * * for a period not exceeding ten days from the date of the return of the verdict." The provision that motions for new trial shall be filed before judgment has been uniformly held mandatory; and, where allocution has been accorded in felony cases (sections 3713, 3714, R. S. 1929 [Mo. St. Ann. §§ 3713, 3714, pp. 3263, 3264]), motions for new trial filed after judgment and sentence, although filed within four days after the verdict, for instance, on the day of the return of the verdict [State v. Selleck (Mo. Sup.) 46 S.W.(2d) 570 (1); State v. Baird, 297 Mo. 219, 225 (2), 248 S. W. 596, 598 (3)], or the day following [State v. Letney (Mo. Sup.) 300 S. W. 674 (2); State v. Graham, 301 Mo. 272, 274, 256 S. W. 770, 771 (2); State v. Eisenhart (Mo. App.) 294 S. W. 422, 423 (1-3)], have been held filed too late for consideration. And see, among others, State v. Sparks, 263 Mo. 609, 613 (2), 173 S. W. 1057 (3); State v. McSame (Mo. Sup.) 267 S. W. 888 (1). This, too, notwithstanding the fact the record discloses that such motion was entertained and overruled (the Selleck, Baird, Letney and Graham Cases, supra); the court, under the statute (section 3735, supra), being without power so to do. State v. Blanchard, 326 Mo. 965, 967 (1), 33 S.W.(2d) 937 (1). If a trial court may not lawfully entertain a motion for a new trial and pass upon the same after according allocution and pronouncing judgment and sentence, it (absent any further showing in the record) likewise is without power thereafter to lawfully extend the time for filing the motion for new trial. Should a defendant, within the time allowed by law, desire the court to vacate or expunge from its records a judgment entered thereon that he might be heard on a motion for new trial not theretofore filed, he should timely move the court so to do, and thereafter timely file his motion for new trial. State v. Sparks, 263 Mo. 609, 614 (2), 173 S. W. 1057, 1058 (2). Since the record in the instant case shows that, without objection or exception, appellant, in the presence of his counsel, was accorded allocution, and judgment and sentence were pronounced, the filing of a motion for new trial thereafter, under an order (entered within the four-day period) extending the time for filing such motion (nothing more appearing), comes too late, and only the record proper is for review here.

Among other apparent reasons for confining this review to an examination of the record proper is the fact that an examination of the bill of exceptions (and record proper — the motion for new trial appears in the record proper and no reference to it appears in the bill of exceptions) fails to disclose any exceptions saved to the action of the trial court in denying a new trial. State v. Gentry (Mo. Sup.) 55 S.W.(2d) 941 (1); State v. Duke (Mo. Sup.) 34 S.W.(2d) 34; State v. Arrowood (Mo. Sup.) 11 S.W.(2d) 1015, and cases cited; State v. Black (Mo. Sup.) 186 S. W. 1047 (1); State v. Weinegard, 168 Mo. 490, 68 S. W. 357.

As to the responsibility of litigants or their counsel for the proper preparation and transmission to this court of transcripts of proceedings so as to preserve alleged error for review here, see State v. Kelsay (Mo. Sup.) 18 S.W.(2d) 491 (4); State v. Barrett (Mo. Sup.) 44 S.W.(2d) 76, 78 (6).

The information, in so far as here material, charges that "Lee Porter * * * did * * * unlawfully, wilfully and feloniously make an assault upon one J. O. Stone, and * * * said Lee Porter * * * did unlawfully and wilfully and feloniously strike, choke and strangle the said J. O. Stone, * * * and said Lee Porter did, * * * as aforesaid, unlawfully, wilfully and feloniously, with great force which was likely to produce death, strike, choke and strangle the said J. O. Stone, * * * whereby he, the said J. O. Stone, did then and there receive great bodily harm and injury, and whereby the life of him, the said J. O. Stone, was then and there endangered. * * *" Appellant contends the information fails to charge an offense under section 4015, R. S. 1929 (Mo. St. Ann. § 4015, p. 2821), in that it nowhere alleges an intent...