State v. Williams

• Decision Date: 07 November 1898
• Parties: STATE v. WILLIAMS.
• Court: Missouri Supreme Court

47 S.W. 891

147 Mo. 14

STATE v. WILLIAMS.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

CRIMINAL LAW — APPEAL — BILL OF EXCEPTIONS — LARCENY — VENUE — CONVICTION — VACATION.

1. Exceptions in a criminal case cannot be inserted in a bill of exceptions at a term subsequent to that at which they were taken.

2. Remarks of a prosecuting attorney in arguing to the jury cannot be preserved for consideration on appeal in affidavits or the motion for new trial.

3. Where a thief stealing a steer transports it into another county, the venue of the theft is properly laid in the latter county, as each transportation of stolen property from one county to another is a fresh theft.

4. A judgment of conviction cannot be set aside at a term subsequent to that at which it was rendered, on the ground that a witness for the prosecution was guilty of perjury.

Appeal from circuit court, Pulaski county; L. B. Woodside, Judge.

P. W. Williams was convicted of theft, and he appeals. Affirmed.

Robert Lamar, Frank H. Farris, and C. H. Davis, for appellant. Edward C. Crow, Atty. Gen., Sam. B. Jeffries, Asst. Atty. Gen., and W. W. Graves, for the State.

SHERWOOD, J.

A steer stolen in Pulaski county forms the basis of the present prosecution; and, because defendant was convicted of such theft, he comes up to this court, and makes inquiry whether he was legally convicted.

1. It is firmly established by our rulings that matter excepted to at one term of court must be ad tunc et ibidem saved by a bill of exceptions filed at such term, and cannot at a subsequent term be "warmed over" by being inserted in a bill of exceptions filed at such subsequent term. State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Ware, 69 Mo. 333; and other cases. For this cause it is that exceptions taken at the March term, 1897, and not preserved at such term as aforesaid, could not at the September adjourned term, 1897, have a place in the bill of exceptions filed at that term, and should not have been inserted therein.

2. The cross-examination of James Shelton (indicted with defendant, and afterwards severed from him) was in accord with prior decisions of this court. State v. Avery, 113 Mo. 475, 21 S. W. 193, and subsequent cases.

3. As to the remarks of Murphy made in his closing argument to the jury, it is enough to say that the fact that they appear in the motion is no evidence that they appear in the bill of exceptions; nor do they so appear in such bill, — the only place where such matters can be preserved. They cannot be preserved in affidavits nor in motion for new trial. State v. Levy, 126 Mo. 554, 29 S. W....