State v. Woodring

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 652,116 S.W. 449
• Parties: STATE v. WOODRING.
• Court: Missouri Court of Appeals

116 S.W. 449

135 Mo. App. 652

STATE v. WOODRING.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. CRIMINAL LAW (§ 1063)—APPEAL—REVIEW —MOTION FOR NEW TRIAL.

An appellate court may not review matters of exception or touching the merits of the cause, unless such matters were first brought to the attention of the trial court by a motion for new trial.

2. CRIMINAL LAW (§ 1086) — APPEAL — MATTERS TO BE SHOWN BY RECORD—MOTION FOR NEW TRIAL.

Since the statute requires the matter of filing and overruling of a motion for new trial to be entered of record, such matters must be exemplified in the transcript of the record aliunde the bill of exceptions, and that a motion for new trial was filed and overruled appears by a recital in the bill of exceptions is not sufficient to permit the appellate court to review the same.

Appeal from Circuit Court, Oregon County; W. N. Evans, Judge.

Morg Woodring was convicted of violating the local option law, and appeals. Affirmed.

S. M. Meeks and Geo. M. Miley, for appellant. L. P. Norman, for the State.

NORTONI, J.

The defendant was convicted in the circuit court of Oregon county on a charge of having sold intoxicating liquors in violation of the local option law, alleged to have been theretofore adopted in that county. He prosecutes his appeal to this court, and complains only of the insufficiency of the evidence introduced tending to prove the adoption of the local option law.

The case is here on full transcript. Upon an investigation thereof there does not appear in the transcript of the record proper to be an entry showing that a motion for new trial was either filed or overruled in the cause. There is a recital, however, in the bill of exceptions, to the effect that such motion was filed and overruled. Of course, we all understand an appellate court is not permitted to review matters of exception or touching the merits of the cause at the trial, unless the matters were first brought to the attention of the trial court by a motion for new trial. State v. Burdett, 145 Mo. 674, 47 S. W. 796. Although the fact that a motion for new trial was filed and overruled appears by a recital to that effect in the bill of exceptions, such of itself is not sufficient to permit an appellate court to review the same. The motion itself, and an exception to the action of the court in overruling the same, are properly exemplified in the bill of exceptions; but the bill is not a proper repository for matters which should...