State v. Vinson

• Citation: 87 S.W.2d 637,337 Mo. 1023
• Parties: The State v. John Vinson, Ora Goodin and Roy Goodin, Appellants
• Decision Date: 05 November 1935
• Court: United States State Supreme Court of Missouri

87 S.W.2d 637

337 Mo. 1023

The State v. John Vinson, Ora Goodin and Roy Goodin, Appellants

Supreme Court of Missouri

November 5, 1935

Appeal from Dallas Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded (with directions).

L L. Collins, Herman Pufahl and Nelson B. Evans for appellant.

Roy McKittrick, Attorney General, and Wm. W Barnes, Assistant Attorney General, for respondent.

(1) The only matter before the court for review in this case is the record proper. Secs. 3756, 3757, R. S. 1929; State v. Mele, 71 S.W.2d 718; State v. Carel, 69 S.W.2d 296. (2) The information in this case is sufficient, in form and substance. State v. Hodges, 237 S.W. 1000; State v. Swearengin, 234 Mo. 552. (3) The verdict is clear, definite and follows the information. State v. Batey, 62 S.W.2d 452; State v. Matkins, 37 S.W.2d 422; State v. Harbeston, 330 Mo. 801. (4) The judgment is sufficient. State v. Shawley, 67 S.W.2d 90; State v. Lettrell, 39 S.W.2d 558.

OPINION

Leedy, C.

Appellants were jointly charged by information in the Circuit Court of Dallas County with the offense of grand larceny. Upon a trial they were convicted, and the punishment of each was separately assessed by the jury at a term of two years in the penitentiary. After an unavailing motion for a new trial, they appealed, but have filed no brief in this court.

The transcript of the record, as originally certified by the clerk and filed in this court, failed to include a copy of the information, or even to show that one was ever filed. Thereafter, a motion suggesting diminution of the record in the respect mentioned was filed by the Attorney General, praying "that a writ of certiorari issue . . . directing said clerk to certify to this court that part of the record as herein complained of, that the whole record may be before this court." The motion was sustained, and certiorari ordered issued. In compliance therewith, there came in a copy of the information, showing the same to have been filed on March 29, 1934. Accompanying the transcript is what purports to be a copy of the bill of exceptions, but it is not authenticated by the certificate of the circuit clerk. In this situation, there is nothing before us except the record proper. [State v. Ragg, 337 Mo. 436, 84 S.W.2d 911, and numerous cases therein cited.] It may be added that it does not appear from the record entries that a bill of exceptions was ever filed, and the purported copy on its face fails to show that it was ever signed and approved by the trial judge, or anyone else having authority in that behalf.

Under the statute (Sec. 3760, R. S. 1929, 4 Mo. Stat. Ann., sec. 3760, p. 3298) it is our mandatory duty to examine the record proper, if it is properly before us. The information is verified, and alleges every necessary element required to charge the crime of grand larceny. It describes the chattels alleged to have been stolen as "One cream separator McCormick Deering make, of the value of Seventy-five Dollars, and one set of harness of the value of Twenty-five dollars of the goods and chattels of one Vernie Icenhower." We think it sufficient. The verdict reads as follows:

"We, the jury, find the defendant John Vinson guilty as charged, and assess his punishment at 2 years in State penitentiary.

"We, the jury, find the defendant Ora Goodin guilty as charged, and assess his punishment at 2 years in State penitentiary;

"We, the jury, find the defendant Roy Goodin guilty as charged, and assess his punishment at 2 years in State pentientiary.

"V. M. Atchley, Foreman."

It will be observed that it separately finds each defendant guilty, and separately fixes the punishment of each at terms within the limits prescribed for the offense. It is sufficient in both form and substance.

In addition to the matters just mentioned, the record entries show the various steps taken leading up to and at the trial, as well as the filing and overruling of a motion for new trial, and the affidavit for, and the allowance of an appeal. It is apparent, therefore, that the case ought to be affirmed if sentence was pronounced and judgment entered in accordance with the verdict. But the transcript wholly fails to show the judgment entry, if, in fact, judgment was entered on the verdict. The only entry appearing in the transcript relating thereto reads as follows: "Now on this day the motion for new trial heretofore filed in this cause, after being seen, heard and duly considered, is by the court overruled, and defendants sentenced." Whether the entry "defendants sentenced," taken in connection with the verdict, and other entries herein referred to would have been sufficient to have authorized the entry of the judgment nunc pro tunc, is a question not before us. That the judgment, even in a criminal case, may be so entered, is not open to question, and this is true notwithstanding the allowance of an appeal. [State v. Collins, 225 Mo. 633, 125 S.W. 465.] But that procedure was not attempted to be followed here, and in this situation the respondent contends "the trial judge is entitled to presumption of right action. In this case that each defendant was sentenced in accordance with the verdict." More particularly, respondent's brief on the point recites: "In State v. Lettrell, 39 S.W.2d l. c. 558, this court said: 'In the absence of the record to the contrary, the trial court is presumed to have performed its duty.' Respondent therefore contends, that where the record recites 'defendants sentenced,' that the presumption obtains that each defendant was duly sentenced to serve two years in the State penitentiary, in accordance with the verdict." We think the two cases cited are without application, under the facts of this record. The excerpt quoted from the Lettrell case is from a statement made in connection with an assignment relating to a communication with the jury alleged to have been made by the judge while not in open court or in the presence of the defendant. It appeared that court convened just before the jury was ready to report. There was no effort to prove what communication the judge sent to the jury, and so it was held, and properly so, that the circuit judge was entitled to the presumption of right action, the assignment and evidence in support of it presenting nothing tangible for review. The excerpt from the Lettrell case quotes only a portion of the sentence of which it is a part. In full it is, "In State v. Barr, supra, we announced the general rule that, in the absence of the record to the contrary, the trial court is presumed to have performed its duty." But an examination of the Barr case itself (326 Mo. 1095, l. c. 1100, 34 S.W.2d 477) expressly holds there is no presumption that the trial court performed every act necessary in the regular progress of a case. It says that "in many instances . . . the chasm is bridged" by the presumption that the court performed its duty, then proceeds to point out, "the record proper, for instance, must affirmatively show that the jury was sworn. [State v. Mitchell, 199 Mo. 105, 97 S.W. 561, 8 Ann. Cas. 749.] It must show such formalities as the filing and overruling of the motion for new trial, the filing of the bill of exceptions, and allowance of allocution, unless the same is waived. It must show that an indictment or information was filed, and that the trial proceeded upon that indictment or information."

In practice sentence is pronounced orally, and when this has been done in defendant's presence, he has been accorded the full measure of his right, and the court may thereafter write out the sentence in his absence. [8 R. C. L., sec. 234 p. 235.] Judgment Freeman, in his authoritative work on Judgments [(5th Ed.), Vol. 1, section 49, pages 83, 85] makes this observation concerning the importance and necessity of the judgment entry: ". . . Hence all courts and all tribunals possessing judicial functions are required by the written or unwritten law, and often by both, to reduce their decisions to...