State v. Watts

• Decision Date: 12 March 1913
• Citation: 154 S.W. 721,248 Mo. 494
• Parties: STATE v. WATTS.
• Court: Missouri Supreme Court

154 S.W. 721

248 Mo. 494

STATE v. WATTS.

Supreme Court of Missouri, Division No. 2.

March 12, 1913.

CRIMINAL LAW (§ 1092) — APPEAL — SUFFICIENCY OF BILL OF EXCEPTIONS — SIGNATURE OF TRIAL JUDGE.

Under Rev. St. 1909, § 5308, requiring the clerk on a criminal appeal to make out a full transcript of the record including the bill of exceptions, and certify and return it to the clerk of the Supreme Court; section 2028, providing that in civil suits the party excepting shall write his exception and pray the court to allow and sign it, which the court, if the bill be true, shall sign; and section 5245, providing that exceptions in criminal cases are to be settled, signed and filed as in civil suits — a bill of exceptions not showing that it was allowed and signed by the trial judge, although embodied in a transcript to which the clerk had appended an entry to the effect that defendant filed his bill of exceptions duly signed and allowed by the judge of the circuit court, is no bill, and precludes the Supreme Court from examining anything except the record proper.

Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.

Roy Watts was convicted of seduction, and he appeals. Affirmed.

Noell & Noell, of Perryville, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen. (A. W. Stewart, of Bowling Green, of counsel), for the State.

WALKER, J.

Defendant appeals from a conviction in the circuit court of Madison county for seduction under section 4478, R. S. Mo. 1909; his punishment having been assessed at 12 months' imprisonment in the county jail and a fine of $1,000.

The transcript of the proceedings filed here disclose a commingled mass of record entries, testimony, instructions given, copies of motions for a new trial and in arrest and the overruling of same with defendant's exceptions, the affidavit for appeal and the granting of same, to all of which is appended a record entry signed by the clerk, as follows: "Now on this 22d day of August, 1912, in vacation of the circuit court of Madison county, Mo., comes Roy Watts by his attorney and files his bill of exceptions in the above-entitled cause, the same being duly signed and allowed by Hon. Peter H. Huck, judge of the said circuit court." This is followed by the usual formal certificate as to the correctness of the transcript which is properly signed by the clerk with the seal of the court imprinted thereon. The copy of the bill of exceptions, embodied in this transcript, does not show that the trial judge allowed and signed the same. If this is essential to a complete bill, we are precluded from examining anything except the record proper.

Bills of exceptions were unknown to the common law, being first authorized by the statute of 13 Edward I, c. 31. This statute provided, in brief, that "whenever any one alleged an exception the justice should put his seal thereto for a witness." This statute in effect required the trial judge to sign the exception because the use of his seal was at that time a surer attestation of the truth of the bill than his signature; and this was the purpose of the statute. The origin of similar provisions to be found in the Codes of many states is traceable to this early English statute.

The requirements of our statute in this regard are that, "whenever in the progress of any trial in any civil suit pending in any court of record, either party shall except to the opinion of the court, and shall write his exception and pray the court to allow and sign the same, the person composing the court shall, if such bill be true, sign the same."...