State v. Ryan
| Decision Date | 10 June 1932 |
| Docket Number | No. 31752.,31752. |
| Citation | 50 S.W.2d 999 |
| Parties | STATE v. RYAN. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Stoddard County; Frank Kelly, Judge.
Dawsey Ryan was convicted of manslaughter, occasioned by performing an illegal abortion, and he appeals.
Affirmed.
Stratton Shartel, Atty. Gen., and C. A. Powell, Asst. Atty. Gen., for the State.
The defendant, a duly licensed physician, was convicted in the circuit court of Stoddard county, Mo., of the crime of manslaughter, occasioned by performing an illegal abortion in and upon one Maude Jenkins. The punishment assessed was two years' imprisonment in the penitentiary. A motion for a new trial was filed, overruled by the court, and the defendant sentenced. From this sentence he has appealed.
We find the information sufficient both in form and substance. The verdict is in proper form. Defendant was accorded a jury trial. Sentence followed the overruling of the motion for a new trial. No errors appear in the record proper.
After the jury returned their verdict, on October 2, 1930, the record discloses the following order of the court: "Upon request of attorney for defendant, it is ordered by the court that defendant be allowed ten days in which to file his motion for a new trial." The record entry discloses that the motion was filed on October 13, 1930. The learned Assistant Attorney General contends that the order of the court, granting defendant ten days in which to file his motion for a new trial, was void, because it shows upon its face that the order was not made for good cause, as provided in section 3735, R. S. Mo. 1929; that the only basis for the order was the request of the defendant. The provision of the statute, granting courts power to extend the time of filing motions for a new trial, are for defendant's benefit, and, as a practical proposition, unless requested by defendant, an order extending the time will not be made. The statement, therefore, in the order that it was made at defendant's request does not affect the order in any way. It must be presumed that the court had good reason for making the order. It is not always necessary for the court to hear evidence on this question. The court may have knowledge of facts that dispense with the necessity of any showing. The length of the trial itself may be a sufficient reason, since, under the present law, motions for a new trial in criminal cases must set forth in detail and with particularity the specific grounds or causes why a new trial should be granted. If the trial court deems it proper to grant a defendant ten days in which to file a motion, the defendant should not be denied a hearing in the appellate courts on the questions duly presented by the motion. The statute, we think, leaves the matter of extending the time to the sound discretion of the trial court. Certainly no one can be hurt by such an order.
Neither do we agree with the contention that the motion was not timely filed. It is true that more than ten days elapsed between the returning of the verdict and the date of the filing of the motion. However, two Sundays intervened, and, if the Sundays are not considered days, as contemplated by the statute the motion was timely filed. Sundays have always been excluded in computing the time in which to file a motion for a new trial. Maloney v. Mo. Pac. Ry. Co., 122 Mo. 106, 26 S. W. 702; State v. Harris, 121 Mo. 445, 26 S. W. 558; Long v. Hawkins, 178 Mo. 103, 77 S. W. 77; State v. Schmitz (Mo. Sup.) 46 S.W. (2d) 539. We know of no good reason why the same rule should not apply when the time for filing the motion has been extended. If the tenth day should perchance fall on Sunday, the defendant would be deprived of his ten days as contemplated by the statute, because courts are not open on Sundays. Section 1863, R. S. Mo. 1929.
No point is made by appellant as to the sufficiency of the evidence to support the charge. The state adduced substantial evidence in support of every element necessary to constitute the crime of manslaughter, as defined in section 3991, R. S. Mo. 1929.
In the motion for a new trial only two questions are preserved for our review. First, appellant contends that the trial court erred in admitting in evidence the testimony of witnesses, purporting to relate the dying declaration of the deceased; the declaration not having been made under the sanction of the belief that death was impending. The record reveals that three physicians informed deceased that she was dangerously ill and probably would not recover. The mother of deceased testified that deceased made the statement that had she not believed she was going to die she would never have...
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