State v. Wilson

• Decision Date: 04 December 1906
• Citation: 200 Mo. 23,98 S.W. 68
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

98 S.W. 68

200 Mo. 23

STATE v. WILSON.

Supreme Court of Missouri, Division No. 2.

December 4, 1906.

1. CRIMINAL LAW — APPEAL — RECORD — TIME OF FILING BILL OF EXCEPTIONS.

Rev. St. 1899, § 728, authorizing an extension of time in which a bill of exceptions may be filed, provides that the order therefor made by the court in vacation shall be entered of record. Held, that a certificate of the trial judge and an ex parte affidavit tending to show that an order had been filed could not supply the omission of the record to show that fact, and that, subsequent extensions being without authority of law, the bill could not be reviewed on appeal.

2. SAME — RIGHT TO SUPPLY LOST RECORD.

The Supreme Court has no power on appeal to supply any lost portion of a record of the circuit court.

3. DISTRICT AND PROSECUTING ATTORNEYS — SPECIAL ATTORNEYS — SUFFICIENCY OF APPOINTMENT.

Under Rev. St. 1899, § 4955, providing for the appointment of a special prosecuting attorney where the regular prosecutor's interest in a case is inconsistent with his official duties, the recital of a record that the regular prosecuting attorney had been employed as counsel by defendant, and that for that reason S. was appointed special prosecuting attorney in the case, was sufficient to sustain the appointment.

4. SAME — POWER OF SPECIAL PROSECUTOR.

Under the express provisions of Rev. St. 1899, §§ 4955, 4957, providing for the appointment of a special prosecuting attorney where the regular prosecutor's interest in a case is inconsistent with his official duties, the special prosecutor has all the power for the purposes of the case in which he is appointed that the regular attorney would have had.

5. CRIMINAL LAW — APPEAL — PRESUMPTION OF QUALIFICATION OF SPECIAL PROSECUTOR.

In the absence of a showing to the contrary, it will be presumed on appeal that one appointed special prosecuting attorney under Rev. St. 1899, § 4955, providing for such appointment where the regular prosecutor is disqualified, qualified in obedience to statutory provisions.

Appeal from Circuit Court, Vernon County; L. W. Shafer, Judge.

Dennis Wilson was convicted of grand larceny, and appeals. Affirmed.

J. R. Moss, D. M. Gibson, and A. J. King, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

J. R. Moss, Esq., the regular prosecuting attorney of Vernon county, having been of counsel for the defendant, the circuit court of that county by an order entered of record on the 21st day of February, 1905, appointed Levi L. Scott, Esq., special prosecuting attorney for the purpose of this prosecution under and by virtue of sections 4955, 4957, Rev. St. 1899, and thereafter, on February 23, 1905, Mr. Scott, as such special prosecuting attorney, filed an information, duly verified by himself, and accompanied by the affidavit of Edward Shelton, wherein he charged the defendant with grand larceny, in feloniously taking, stealing, and carrying away 13 head of neat cattle, to wit, 13 two-year old steers, in Vernon county on the 22d day of September, 1904. The defendant was arrested and duly arraigned, and entered his plea of not guilty, and at the same term was put upon his trial and convicted, and his punishment assessed at four years in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment the defendant was sentenced to the penitentiary. From that sentence he appeals.

1. At the very threshold of our investigation of this record, we are confronted by the contention of the Attorney General that the bill of exceptions is no part of the record, for the reason that it was not filed in time. The facts appearing in the transcript disclose that the defendant was convicted on March 3, 1905. At the February term of the Vernon court he was granted an appeal and was given until the first day of the next regular term to file his bill of exceptions. On the first day of the regular May term, 1905, of said court, the court, for good cause shown, ordered that the time for filing the bill should be extended to August 15, 1905. There is no order of record extending the time for filing the bill of exceptions from August 15th to the second day of the October term, and the clerk certifies to no such order having been filed with him in vacation, but he has certified to this court as a part of his transcript the affidavit of Mr. King, one of the counsel for the defendant in this cause in the circuit court, to the effect that on or about the last day of July, 1905, he prepared an order, to be signed by the judge of the circuit court of Vernon county, extending the time for filing the bill of exceptions in this case from August 15, 1905, to the second day of the October term, 1905, of the circuit court of said county, and mailed said order to Hon. L. W. Shafer, the judge of said court, at Greenfield, Mo., the post-office address of said judge, with the request that he sign and return the same to the clerk of the circuit court of Vernon county, and that he afterwards met Judge Shafer on the 10th day of August, 1905, in the city of Nevada, and was informed by Judge Shafer that he had signed...