State v. Stanley

• Decision Date: 27 December 1910
• Citation: 132 S.W. 1122,232 Mo. 23
• Parties: STATE v. STANLEY.
• Court: Missouri Supreme Court

132 S.W. 1122

232 Mo. 23

STATE v. STANLEY.

Supreme Court of Missouri, Division No. 2.

December 27, 1910.

1. CRIMINAL LAW (§ 1063)—NEW TRIAL—APPLICATION—TIME FOR FILING.

Under Rev. St. 1909, § 5285, providing that a motion for new trial shall be filed before judgment, the filing of a motion for new trial after judgment will not preserve for review in the Supreme Court matters of exception saved during the trial.

2. CRIMINAL LAW (§ 974)—APPEAL—RECORD —MATTERS CONSIDERED.

Under Rev. St. 1909, § 5286, authorizing motions in arrest of judgment, a motion in arrest of judgment in a criminal case filed after judgment cannot be considered in the Supreme Court.

3. CRIMINAL LAW (§ 1063)—APPEAL—RECORD —QUESTIONS PRESENTED FOR REVIEW.

The verdict, being a part of the record proper, will be reviewed in the Supreme Court to determine whether it is certain and responsive to the charge, even in the absence of motions for new trial and in arrest of judgment.

4. CRIMINAL LAW (§ 878)—VERDICT—RESPONSIVENESS TO INFORMATION.

Where the information charges statutory rape and seduction under promise of marriage, a verdict of conviction failing to state on which

count the defendant is found guilty is insufficient to support a judgment of conviction.

Appeal from Circuit Court, Christian County; Jno. T. Moore, Judge.

James Stanley was convicted of statutory rape and of seduction under promise of marriage, and appeals. Reversed and remanded.

G. Purd Hays, for appellant. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J.

The defendant, James Stanley, was prosecuted in the circuit court of Christian county upon an information in two counts; the first charging the defendant with the felony of having had carnal knowledge of an unmarried female of previous chaste character, between the ages of 14 and 18 years, and the second the felony of seduction under promise of marriage. Upon a trial the jury returned a general verdict finding the defendant guilty and assessed his punishment at imprisonment in the penitentiary for a term of two years. From the judgment he appealed to this court.

As shown by the record, the verdict of the jury was returned on the 28th day of August, 1909, and on the same day judgment was regularly pronounced and sentence passed. Three days after judgment, to wit, August 31, 1909, the defendant filed a motion for a new trial, and on the 3d day of September, 1909, filed his motion in arrest of judgment.

It is provided by section 5285, Rev. St. 1909, as follows: "The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if not, then before the end of the term, and shall be heard and determined in the same manner as motions for new trials in civil cases." This statute has been construed to be mandatory, and under the decisions of this court the filing of a motion for a new trial after judgment will not preserve for review in this court matters of exception saved during the trial. State v. Fraser, 220 Mo. 34, 119 S. W. 389; State v. Pritchett, 219 Mo. 696, 119 S. W. 386. The motion in arrest is also required to be filed before judgment, and in this case, being filed out of time, it cannot be considered. Section 5286, Rev. St. 1909; State v. Pritchett, supra; State v. Rosenblatt, 185 Mo. 114, 83 S. W. 975. Under the foregoing statutes as construed in the decisions cited, we are restricted on this appeal to an examination of the record proper. The information is in accordance with forms which have received the sanction of this court, and therefore we hold it sufficient. State v. Knock, 142 Mo. 515, 44 S. W. 235; State v. Hall, 164 Mo. 528, 65 S. W. 248; State v. O'Keefe, 141 Mo. 271, 42 S. W. 725; Kelley's Crim. Law & Prac. § 555. The defendant was properly arraigned and the jury regularly impaneled and sworn to try the issues of this case.

It is contended by appellant that the verdict is insufficient to support the judgment for the reason that the jury failed to state upon which count of the information they found the defendant guilty. The verdict is a part of the record proper. It must be certain and responsive to the charge, and therefore may be reviewed in this court even in the absence of motions for new trial and in arrest of judgment. State v. Miller, 189 Mo. 673, 88 S. W. 607; State v. Cronin, 189 Mo. 663, 88 S. W. 604; State v. Pierce, 136 Mo. 34, 37 S. W. 815. The verdict is as follows: "We, the jury, find the defendant guilty, and assess his punishment at two years in the penitentiary. Elmer Cornog, Foreman." Upon this verdict the judgment and sentence of the court, so far as material, was as follows: "Now on this day comes the prosecuting attorney for the state of Missouri, and also comes the defendant herein in person in custody of the sheriff of this county in open court, whereupon said defendant is informed by the court that he having been found guilty by jury of the crime of statutory rape and seduction under promise of marriage as charged in an information preferred against him by the prosecuting attorney of Christian county, Mo., and being now asked by the court if he had any legal cause why judgment should not be pronounced against him according to law, and still failing to show such cause: It is therefore sentenced, ordered, adjudged by the court that the said James Stanley, having been convicted as aforesaid, be confined in the penitentiary at Jefferson City for a period of two years from the 23d day of August, 1909," etc. It thus appears in the record before us that the court adjudged the defendant guilty of both offenses charged in the information. We are confronted therefore with a case...