State v. Weinegard

• Decision Date: 13 May 1902
• Citation: 68 S.W. 357,168 Mo. 490
• Court: Missouri Supreme Court
• Parties: STATE v. WEINEGARD.

68 S.W. 357

168 Mo. 490

STATE v. WEINEGARD.

Supreme Court of Missouri, Division No. 2.

May 13, 1902.

CRIMINAL LAW — APPEAL — BILL OF EXCEPTIONS — AUTHENTICATION — MOTION FOR NEW TRIAL — REVIEW.

1. Where the transcript on an appeal is sent in two sections, one supposably intended for the bill of exceptions, without any preliminary heading or authentication, and the other containing an undated statement that a bill of exceptions was filed in the cause, but not identifying or authenticating the other section as such bill, such papers cannot be considered.

2. Where the bill of exceptions does not show that an exception was saved to the ruling of the court denying a motion for new trial, no examination can be had of trial error, though the record proper contains a recital that defendant excepted to the ruling.

Appeal from criminal court, Jackson county; Jno. W. Wofford, Judge.

George M. Weinegard was convicted of murder in the second degree, and appeals. Affirmed.

J. H. McVay, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, P. J.

Ninety-nine years was the term in the penitentiary awarded defendant, who, being tried for murder in the first degree (for that he shot William A. Simpson to death with a revolver), was convicted of murder in the second degree. Not being satisfied with what he asserts was an erroneous trial, consummated by such an erroneous result, defendant appeals to this court.

There is no error in the record proper, but there are two fatal defects, which will prevent our examination into the points presented in the supposed bill of exceptions, which are these: In the first place, the transcript has been sent here in two sections, — one of them presenting what supposably is intended for the bill of exceptions, without any preliminary heading or authentication; the other section containing an undated statement that a bill of exceptions was filed in the cause as above entitled. But such a statement is obviously and absolutely insufficient to identify or authenticate the bill in question, and so we have repeatedly ruled. Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808; State v. Baty (Mo. Sup.) 66 S. W. 428. In the second place, even if the so-called bill of exceptions had been properly identified and authenticated, still the fact remains that when the motion for a new trial was denied there was no exception saved to the ruling of the court in this regard, — at least the bill...