State v. Rollinger

• Decision Date: 03 December 1923
• Docket Number: No. 24945.,24945.
• Citation: 256 S.W. 460
• Parties: STATE v. ROLLINGER et al.
• Court: Missouri Supreme Court

256 S.W. 460

STATE v. ROLLINGER et al.

No. 24945.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Rails County; Edgar B. Woolfolk, Judge.

William E. Rollinger and Lester E. Hughes were convicted of possessing, and defendant Rollinger of selling, intoxicating liquors, and they appeal. Transferred to St. Louis Court of Appeals.

Lewis O'Connor, of Hannibal, and James O. Allison, of New London, for appellant.

Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The grand jury in the Hannibal court of common pleas returned an indictment in two counts charging the defendants in the first with having unlawful possession and in the second with having sold intoxicating liquors in Mason township in Marion county. A change of venue was awarded to Rails county, and the judge of said court, Hon. Charles T. Hays, having been disqualified, Hon. E. B. Woolfolk, judge of the Thirty-Fifth judicial district, was called in to try the case. The defendants withdrew their pleas of not guilty and filed a plea in abatement charging, among other things, that the grand jury which returned the indictment was convened without an order of the judge of the said court of common pleas, as required by section 28 of article 2 of the Constitution. After hearing evidence, the court overruled the plea in abatement, to which ruling the defendants excepted. The case proceeded to trial, resulting in a verdict finding the defendant Rollinger guilty on both counts, assessing his punishment on the first count at imprisonment in the county jail for three months and a fine of $500, and six months in tho county jail and a fine of $500 on the second count, and finding the defendant Hughes guilty on the first but not guilty on the second count, and assessing his punishment at a fine of $300 on the first count.

After motions for new trial and in arrest were overruled, sentence was pronounced in accordance with the verdict, except that the sentence did not refer to the fines assessed against the defendant Rollinger. The defendants were allowed an appeal to this court.

The bill of exceptions fails to show that an exception was saved to the overruling of either the motion for new trial or in arrest. Before the oral argument, leave was given the appellants to file a supplemental bill of exceptions, but none has been filed. They have, however, filed a certified copy of the record of the order of the court, showing that exceptions were saved to the overruling of each of said motions.

They have also filed the written statement of Judge Hays, certifying:

"That for many years there has been, and now is, in this the Tenth judicial circuit, a rule to the effect that exceptions are deemed saved and objections made to all rulings on motions, whether or not made and noted at the time, and that the stenographer set out the same in making up bills of exceptions."

1. An exception to the ruling on a motion must be saved in the bill of exceptions by being recited therein; "without such exception thus taken and saved the so-called bill becomes `as sounding brass or a tinkling cymbal' In such case, in contemplation of law, there is no such motion." "No recital by the clerk in the record proper will have any such preservative effect. Nichols v. Stevens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514. This holds good of all motions made for finding of facts as provided by statute, the only exception being that motions which constitute pleadings are regarded as a part of the record proper just like any other pleading." Ryan v. Growney, 125 Mo. 474, 480, 481, 28 S. W. 189, 755; Keet & Rountree Dry Goods Co. v. Williams (Mo. App.) 202 S. W. 620, 621(1), and cases cited; Whiteley v. Watson (Mo.) 178 S. W. 464, 466; Sicher v. Rambousek, 193 Mo. 113, 128, 91 S. W. 68; ...