State v. Tribbey, 31802.

• Decision Date: 10 June 1932
• Docket Number: No. 31802.,31802.
• Parties: STATE v. TRIBBEY.
• Court: Missouri Supreme Court

50 S.W.2d 1017

STATE v. TRIBBEY.

No. 31802.

Supreme Court of Missouri, Division No. 2.

June 10, 1932.

Appeal from Circuit Court, Daviess County; Ira D. Beals, Judge.

Ernest Tribbey was convicted of manslaughter, and he appeals.

Affirmed.

Stratton Shartel, Atty. Gen., and Don Purteet, Asst. Atty. Gen., for the State.

COOLEY, C.

Upon an information charging him with murder in the first degree, the defendant was convicted of manslaughter in the circuit court of Daviess county. The jury returned the following verdict:

"State of Missouri, Plaintiff, vs. Ernest Tribbey, Defendant.

"We, the jury in the above entitled cause, find the defendant guilty of manslaughter and we further state that we are unable to agree upon the punishment to be assessed against the defendant.

                          "George M. Bennett, foreman."
                

The court assessed defendant's punishment at ten years' imprisonment in the penitentiary, and, after his motion for new trial had been overruled, defendant was granted allocution and was sentenced to that term of imprisonment. On March 14, 1931, he was granted an appeal to this court. On February 27, 1932, two weeks before the expiration of the year within which the statute requires the appeal to be perfected, there was filed here a transcript of the record, certified by the clerk of the circuit court to be a true and complete transcript of the record and proceedings of that court "except defendant's bill of exceptions." It contains no recital or showing that any bill of exceptions had been allowed or filed, and we have nothing before us to show that a bill of exceptions was ever allowed and filed.

If a bill of exceptions was filed, the appellant should have seen to it that a copy thereof was incorporated in the transcript sent here, or, if filed after that transcript had been forwarded, that such copy was properly certified to this court within the time allowed for perfecting the appeal. That duty devolves upon the appellant in a case of this class. Section 3757, Rev. St. 1929; State v. Culbertson (Mo. Sup.) 24 S.W.(2d) 980; State v. Pieski, 248 Mo. 715, 154 S. W. 747; State v. Piersol (Mo. Sup.) 210 S. W. 58.

In the transcript certified here there is what appears to be a copy of defendant's motion for new trial, but it cannot be considered because it is not record proper and does not become part of the record unless and until made so by being preserved in a bill of exceptions duly allowed and filed. State v. Hembree (Mo. Sup.) 37 S.W.(2d)...