State v. Shehane

• Decision Date: 31 October 1857
• Citation: 25 Mo. 565
• Parties: THE STATE, Respondent, v. SHEHANE, Appellant.
• Court: Missouri Supreme Court

25 Mo. 565

THE STATE, Respondent,

v.SHEHANE, Appellant.

Supreme Court of Missouri.

October Term, 1857.

1. To authorize an appeal to the Supreme Court, final judgment should have been rendered in the court from whose decision the appeal is taken.

2. Instructions to a jury should be incorporated into a bill of exceptions; otherwise they will be disregarded by the Supreme Court.

Appeal from Oregon Circuit Court.

SCOTT, Judge, delivered the opinion of the court.

The defendant was convicted of murder in the first degree, and afterwards appealed to this court. From the transcript filed, it does not appear that any final judgment has been rendered in the cause. Until there is a final judgment, no appeal nor writ of error can be sustained. This appeal, then, must be dismissed. If the judgment has been pronounced and the clerk has failed to enter it, the record may be amended on proper application for that purpose; or if no judgment has been given, the defendant may yet be brought into court and sentenced, and then he will have a right to his appeal or writ of error. If there was a sentence pronounced or judgment given, and by reason of the failure of the clerk to enter it the time has passed within which by such judgment the defendant should have been executed, the court will again sentence the defendant, proceeding in conformity to the 25th and 26th sections, of article 7, of the act to regulate proceedings in criminal cases. (R. C. 1855, p. 1200.) The record, however, will be amended so as to show the first sentence, if there was any, although the time for the execution of the sentence may have elapsed.

It appears that there was a change of venue in this case from Ripley to Oregon county. The transcript from Oregon, where the trial took place, has no caption to it; nor is there any certificate of the clerk authenticating it. Both of these omissions must be supplied. There is nothing in the record showing what became of the cause after the overruling of the motion for a new trial. Surely the proceedings did not end there. Unless more care is taken in making up the records in criminal cases, it will be impossible to sustain convictions, and our penal laws will become a dead letter. There are no instructions presented in the record. Instructions should regularly be incorporated in the bill of exceptions. Although they may appear among the papers in a cause and be spread upon the transcript, they will be disregarded, unless they form a part of the bill of...