State v. Pruitt

• Decision Date: 25 March 1943
• Docket Number: 38344
• Citation: 169 S.W.2d 399
• Parties: STATE v. PRUITT
• Court: Missouri Supreme Court

169 S.W.2d 399

STATE v. PRUITT

No. 38344

Supreme Court of Missouri, Second Division

March 25, 1943

Ira B McLaughlin and McLaughlin & Pohlmann, all of Kansas City, for appellant.

Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen for respondent.

OPINION

BARRETT, Commissioner.

Upon a trial for murder in the first degree a jury found the defendant, Harley H. Pruitt, guilty of manslaughter and fixed his punishment at two and one half years in the penitentiary. His appeal is here on the record proper only and the point briefed and argued by his counsel is that the record does not show that sentence was pronounced and judgment entered on the verdict. For that reason, the defendant says, the cause should be remanded to the circuit court with directions to cause the defendant to be brought before the court and to pronounce sentence and judgment against him in accordance with the verdict of the jury.

The state admits that the record does not show 'allocution and sentence' but contends that because the defendant filed a motion for a new trial, which was considered by the court and overruled, following which the defendant appealed his conviction to this court, that he is not entitled to allocution and of necessity the further force of its argument is that the record need not show sentence and judgment or any other or further steps than this one does.

The record in this case, after the verdict of the jury was returned at the May 1941 term of the court, on May 16, 1941 recites that on that date the defendant was given until June 16, 1941 to file his motion for a new trial and his bond was fixed at $ 2,500 and the bond was then given in open court. On May 19, 1941 the defendant and his counsel appeared and a new bond in the sum of $ 3,500 was given and approved. On June 14, 1941 the court's order granting the defendant until June 16, 1941 in which to file his motion for a new trial was corrected so as to comply with the statute, Sec. 4125, R.S.Mo.1939, Mo.R.S.A. § 4125, and was made to read that the defendant had thirty days from May 16, 1941 in which to file his motion for a new trial. On June 18, 1941 the defendant, by his attorney, filed his motion for a new trial. The record then says that on December 6, 1941, at the November 1941 term of the court, '* * * comes the prosecuting attorney; comes also the defendant by his attorney and said defendant's motion for a new trial is taken up, heard and considered by the court and the same is overruled, to which action and ruling of the court the defendant excepts.

'Now said defendant files application and affidavit for appeal from the judgment of this court in this cause, which said application is by the court taken up and heard and is by the court sustained and appeal allowed to the Supreme Court of Missouri and appeal bond is by the court fixed in the penal sum of $ 2,500, and said defendant is given until on or before the last day of November Term, 1941 of this court in which to file his Bill of Exceptions.' The defendant gave and the court approved his appeal bond. On May 22, 1942, at the May term of the court, 'for good and sufficient cause shown,' the time for perfecting the appeal was extended for ninety days from June 6, 1942.

Following that entry is the certificate of the clerk of the Circuit Court of Jackson County, dated September 3, 1942, and, consequently, no other or further steps in the cause are shown and, as we have said, the defendant has elected to submit his appeal on the record proper and briefs and argues only the one point, that he is entitled to have the case remanded for sentence and judgment.

When a defendant has been convicted of an offense 'punishable by imprisonment' he must be taken into custody and personally brought before the court 'for the purpose ofjudgment.' Secs. 4100 and 4101, R.S.Mo. 1939, Mo.R.S.A §§ 4100, 4101. And in this connection a judgment in a criminal case is defined as follows: 'In its technical legal sense the sentence generally constitutes and has the same meaning as judgment or final judgment or determination against accused in a criminal case. * * * Broadly, the term, in legal parlance, may be said to denote the action of a court of criminal jurisdiction, formally declaring to accused the legal consequences of the guilt which he has confessed or of which he has been convicted. However, a sentence is not, strictly speaking, the act of the court but the judgment of the law which the court is commanded to pronounce.' 24 C.J.S., Criminal Law, § 1556, p. 15; State v. Kellar, 332 Mo. 62, 55 S.W.2d 969. On the other hand, 'the verdict is the definitive answer given...