State v. Thompson

• Decision Date: 19 November 1895
• Citation: 32 S.W. 975,130 Mo. 438
• Parties: The State v. Thompson, Appellant
• Court: Missouri Supreme Court

32 S.W. 975

130 Mo. 438

The State v. Thompson, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

J. W Caldwell and William N. Nalle for appellant.

R. F Walker, attorney general, for the state.

The defendants have filed no bill of exceptions; although the record recites that one has been filed, yet there is none in the record bearing the signature of the circuit judge, as is required. Although the defendants attempted to incorporate an alleged bill of exceptions in the record which recites the filing of the motion for new trial and in arrest, and the action of the court in overruling both of such motions, yet no exceptions were taken or saved when the said motions were overruled. Hence there is nothing for consideration here except such error as may be found in the record proper. State v. Gilmore, 110 Mo. 7; Taylor v. Switzler, 110 Mo. 411; Wilson v. Haxby, 76 Mo. 345; McIrvine v. Thompson, 81 Mo. 648; State v. Hitchcock, 86 Mo. 231; St. Joseph v. Ensworth, 65 Mo. 628; State v. Burkhart, 83 Mo. 433; State v. McDonald, 85 Mo. 539; State v. Pints, 64 Mo. 617; Bateson v. Clark, 37 Mo. 31.

OPINION

Sherwood, J.

Defendant was convicted of assault with intent to maim one Richardson, and, sentenced to pay a fine of $ 100 and to be confined for six months in jail, appeals to this court.

The evidence has not been preserved in the bill of exceptions, the stenographer having died about a month after the trial without having transcribed his notes, owing to a long illness beginning soon after circuit court adjourned, and continuing down to the time of his death, and no one else can translate the stenographer's notes of the evidence.

Upon these grounds, and upon the further ground that no other notes of the evidence were taken, either by defendant's or other counsel in the cause, we are moved, on behalf of defendant, to reverse the judgment and remand the cause.

This we can not do. Notwithstanding the sickness of the stenographer there was nothing to prevent defendant's counsel to have remembered and written down the substance, at least, of the testimony and have the same inserted in the bill of exceptions, because it is evident the evidence could not have been lengthy, and due diligence required of them when discovering the stenographer was dangerously ill, to have preserved the evidence in some way. ...