State v. Rosenblatt
| Decision Date | 13 December 1904 |
| Citation | 83 S.W. 975,185 Mo. 114 |
| Parties | THE STATE v. ROSENBLATT, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.
Affirmed.
C. C Crow for plaintiff in error.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) As applicable to section 2697, Revised Statutes 1899, it will be observed that final judgment in the court below must first be had before a writ of error will lie; in other words, all matters pertaining to the case at bar must first have been completely disposed of before this court will take cognizance of it by way of a writ of error. In re Rose, 80 Cal 170; Tylar v. Hamersley, 26 Am. Rep. 479; Tompkins v. Brown, 123 Mich. 377; State v Crilley, 20 Wis. 231; State v. Jenks, 16 Wis. 332; Eastin v. Gillett, 16 Wis. 546. The record in this case discloses that on the 26th day of June, 1903, defendant entered a plea of guilt to the charge preferred against him in the indictment. On the same day he filed a motion in arrest of judgment, and this motion, as shown by the record, remains undisposed of, so that no final judgment has been rendered by the court below. Cullen v. Whealdon, 1 Mo. 1; Harr v. Knighton, 9 Mo. 180; Posy v. Buckner, 3 Mo. 604; State v. Thompson, 30 Mo.App. 503. Where the record shows that a case has not been disposed of by the lower court, but is there pending on a motion in arrest of judgment, a writ of error will be dismissed. Williams v. Jones, 69 Ga. 757; Young v. Grundy, 6 Cranch 51; Winn v. Jackson, 12 Wheat. 135; Montgomery v. Anderson, 21 How. 386; Martin v. Crow, 28 Tex. 614. (2) There can be no question but that the judgment upon the indictment in question is valid when taken into consideration along with the defendant's plea of guilt. By this plea he has waived all irregularities and informalities thereunder, and especially is it true that an objection levelled against the indictment on the grounds of duplicity is cured by the plea, because all such irregularities are cured unless exception be taken thereto before pleading to the charge. The case then falls upon the proposition that where judgments have been entered by consent of the parties writs of error do not lie. McBride v. Hunter, 64 Ga. 65; People v. Land Owners, 108 Ill. 442.
From a conviction and sentence by the criminal court of Buchanan county, the defendant has taken his writ of error to this court. Preliminary to any investigation to the sufficiency of the indictment, the Attorney-General has moved to dismiss the writ of error on the ground that the cause was not prosecuted to a final judgment in the criminal court, because there is a motion in arrest of judgment yet pending before and undisposed of by the criminal court, and also because the record shows that defendant entered a plea of guilty and agreed to the judgment against him and that no writ of error will lie in such case. For a proper understanding of the questions thus raised, we must look to the record certified to us.
It appears that a grand jury was duly impaneled at the March term, 1903, of the criminal court of Buchanan county, and on the 4th day of April, 1903, the said grand jury returned into court an indictment against the defendant for setting up and keeping divers gambling devices, adapted, devised and designed for the purpose of playing games of chance for money and property, and enticed and permitted divers persons to the grand jury unknown to bet and play at and upon and by means of said gaming tables and devices. Afterwards on the 6th day of April, 1903, the defendant was duly arraigned and pleaded not guilty to said indictment.
Afterwards on the 26th day of April, 1903, and at the same term the record in said cause recites:
It further appears that on the same day and after the sentence of the court, the defendant filed a motion in arrest of judgment and the record is silent as to any disposition of said motion.
It will be observed that the State makes this motion to dismiss, and that the defendant made no objection and took no exception to the action of the court in sentencing him before his motion in arrest was disposed of by the criminal court.
The question then is, was there such a final judgment of the criminal court as to authorize a writ of error therefrom? Writs of error under our statute and practice can only be prosecuted from final judgments. [Sec. 2697, R. S. 1899.] And the same is true of appeals. [Sec. 2696, R. S. 1899; State v. Watson, 95 Mo. l. c. 411, 8 S.W. 383; State v. Love, 52 Mo. 106; State v. Gregory, 38 Mo. 502; State v. Copeland, 65 Mo. 497.] That the criminal court did sentence the defendant is too plain for discussion or doubt. What effect then is to be given to the motion in arrest filed after this final judgment?
Both at common law and by our statute a motion in arrest must be filed before sentence. Thus Chitty in his Criminal Law (5 Ed.), vol. 1, page 663, says, "The defendant may move at any time in arrest of judgment, before the sentence is actually pronounced upon him;" and again, "But if the sentence is once pronounced, though before the actual entry of the judgment, the court are not bound to attend at all to a motion of this nature, even though a formal error should be discovered, sufficient to reverse the proceedings, but the defendant is left to his writ of error; though, as we have seen, the court may, without any motion, arrest the judgment, and may alter the sentence any time during the same term."
Bishop in his work on Criminal Procedure (1 Ed.), section 852, adopts Chitty's statement of the practice on this subject.
The practice in this State in criminal cases as to motions for new trial and in arrest of judgment is different from the practice in civil cases. In the latter we have not followed the common law practice of waiting for four days after the rendition of the verdict before having the judgment signed, and entered, but it is the approved practice in civil cases for the clerk to enter the verdict on the record, and the judgment upon it, and the right to file a motion for new trial or in arrest within the four days allowed by the statute is not affected by the entry of the judgment before the filing of the motion for new trial or in arrest, whereas in criminal cases it is specifically provided by section 2689, Revised Statutes 1899, that such motion shall be filed "before judgment," and the same is true of motions in arrest. [Sec. 2690, R. S. 1899.] And such is the accepted practice in this State.
It is the evident purpose of our statute to continue the common law practice in this respect in criminal cases and it is apparent that a motion in arrest after final judgment in a criminal cause in no manner affects the finality of the judgment, and such a motion does not operate to stay the effect of the judgment, but as is said by Chitty, "the court is not bound to attend at all to a motion of this nature."
In Illinois where the common law practice still obtains to a large degree it was ruled in Parr v. Van Horne, 40 Ill. 122, that where a motion for a new trial was filed after final judgment, the rendering of the judgment would of itself be regarded as a denial of the motion, and would be none the less a final judgment because of the omission of a formal overruling of the motion, and that a motion to dismiss a writ of error on that ground must be denied. While such a rule would not be followed in this State in a civil case, in as much as we practically retain the common law practice in criminal cases, there is much force in the opinion in that case when applied to a criminal case under our practice. [Ex parte Craig, 130 Mo. 590, 32 S.W. 1121.] It follows that the motion to dismiss the writ of error because a motion in arrest was filed after the final sentence of the criminal court, is not well taken, and must be denied.
The remaining ground of the motion is that the judgment was rendered on a plea of guilty. This point has likewise been repeatedly ruled adverse to the contention of the State. Numerous decisions of this court attest that a defendant in a criminal case may take advantage of a material defect apparent of record, though such point be raised for the first time in this court. [McGee v. State, 8 Mo. 495; State v. Meyers, 99 Mo. 107, 12 S.W. 516.] And if no crime is charged in the indictment, then none is confessed by pleading guilty thereto, and the effect of such a plea only amounts to an admission by record of the truth of whatever is sufficiently alleged in the indictment, and will not prevent the defendant from taking advantage of the defects apparent of record on writ of error.
II. Proceeding then to the examination of the errors assigned by defendant, the only question presented is the sufficiency of the indictment to support the judgment and sentence of the criminal court. ...
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