State v. Yowell

• Decision Date: 14 December 1932
• Docket Number: No. 32369.,32369.
• Parties: THE STATE v. CHESLEY R. YOWELL, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 991

THE STATE v. CHESLEY R. YOWELL, Appellant.

No. 32369.

Supreme Court of Missouri.

Division Two, December 14, 1932.

Appeal from Saline Circuit Court. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Louis J. Rosse for appellant.

Stratton Shartel, Attorney-General, for respondent; Silas E. Garner of counsel.

FITZSIMMONS, C.

Defendant was found guilty in the Circuit Court of Saline County of assault to kill but without malice, and his punishment was assessed at four years' imprisonment in the penitentiary. His motion for a new trial was overruled, sentence was imposed and an appeal was taken. The specific charge was that appellant cut one J. Shelton Thomas with a knife with intent to kill him in the city of Marshall, Saline County, on January 12, 1931.

I. Before we may examine any assignments of error, we must determine whether there is in the transcript of the record and proceedings before us a copy of a true or valid bill of exceptions. The trial judge refused to sign a bill which appellant presented to him for this reason, indorsed upon the bill: "I refuse to sign the Bill of Exceptions presented herein, for the reason that the matters set out on page 118-A under heading, `Statements of Prosecuting Attorneys in Argument,' did not occur as therein stated and that the Bill is not true as therein set out." The trial judge then gave his version of what occurred. But let us first examine the objectionable page, 118-A. It shows upon its face that it was prepared and inserted by counsel for appellant in a bill which the court stenographer had written, and it states matter not mentioned in the stenographer's transcription. Page 118-A recites in substance that, in the opening argument to the jury, the assistant prosecuting attorney stated that under the evidence, ten or fifteen years ago, the defendant had cut another man; that one jury then had failed to do its duty, and that, because of that fact, defendant was before another jury and if the jury which was being addressed failed to do its duty, that maybe in ten or fifteen years more, the defendant would cut up another man. The inserted page further recited that the prosecuting attorney, in the closing argument, repeated the statements of his assistant of a previous affray of defendant; that counsel for defendant objected to the statements of the prosecuting attorney as a repetition of the statements of his assistant which were "highly poisonous;" that the court stated there was no evidence of a previous cutting scrape and directed the prosecuting attorney to argue the evidence; that counsel for defendant excepted to the reprimand; that he asked the court to rebuke severely the prosecuting attorney for his statements; that he stated that the given reprimand of the court would not take away the sting of the opening statements of the assistant prosecutor and of the repetition of those statements by the prosecutor; that counsel for defendant asked for the discharge of the jury, and that the court gave no further rebuke to the prosecuting attorney who continued in his closing arguments.

The version of the trial judge of the events stated on page 118-A given in his indorsed refusal to sign the bill is as follows: "The prosecuting attorney did either in his opening statement or argument make a statement to the effect set out and defendant did object to the same. The objection was promptly sustained and the jury was told by the court that there was no such evidence and the prosecuting attorney was told that he should not make such a statement, that he should confine himself wholly to the evidence. There was no request made for further action or criticism by the court and no request that the remarks of counsel or the action of the court be preserved by the stenographer and same was not preserved by him. Dated this 17th day of June, 1932, and delivered back to defendant's attorney this the 17th day of June, 1932."

[1, 2] The refusal of a trial judge to sign a bill of exceptions may raise serious and delicate questions. An unsigned bill of exceptions is invalid. "Lacking such signature (of the judge) it is no bill of exceptions," Reno et al. v. Fitz Jarrell et al., 163 Mo. 411, 63 S.W. 808, l.c. 809, citing Cooper v. Maloney, 162 Mo. 684, 63 S.W. 372. Mandamus is the only method, in a proper case, of compelling the trial judge to sign a bill of exceptions. If his refusal to sign has been improper, it cannot be corrected on appeal. [Priddy v. Hayes, 204 Mo. 358, 102 S.W. 976.] To avoid controversies, sometimes bitter, as the last cited case illustrates, remedial statutes have been enacted. Section 1010, Revised Statutes 1929, provides that if a judge refuses to sign a bill on the ground that it is untrue, he shall certify thereon the cause of such refusal. This the trial judge did in the instant case.

[3] Section 1011, Revised Statutes 1929, provides that if the judge refuses to sign the bill of exceptions, the bill may be signed by three bystanders. Appellant here caused the controverted bill to be signed by three bystanders who stated in their certificate that the bill was true. Section 1011 further provides that the court or judge in vacation shall permit every such bill signed by bystanders "if the same be true" to be filed in court or in the clerk's office, "if ordered to be filed in vacation, within the time specified in such order of the court." In the instant case the judge did not permit the bystanders' bill to be filed in court or in the clerk's office in vacation. It is true that the record proper states that the bystanders' bill was presented by appellant and was filed by the clerk and made a part of the record. But this proceeding was in vacation on June 18, 1932, the day after the judge by his certificate had delivered the bill back to appellant's attorney. And the filing of the bill in vacation as shown by the record proper was without any permission of the court or of the judge. Therefore, for lack of an ordered filing, the proceeding of the clerk did not change the status of the bill as an unsigned and unfiled instrument. And because it was not filed by proper order, it was not validated by the signatures of the three bystanders.

[4] Appellant recognized this situation for he resorted to the further procedure prescribed by Section 1014, Revised Statutes 1929, which provides: "When the judge shall refuse to permit any bill of exceptions signed by the bystanders to be filed, and shall have certified that it is untrue, either party in the suit may take affidavits, not exceeding five in number, in relation to its truth." On June 22, 1932, appellant filed with the clerk in vacation separate affidavits of five persons, three of whom were jurors in the trial of the case. These affidavits were identical in form, lawyerlike in their composition, and in complete conformity with appellant's version of a motion for a second reprimand of the prosecuting attorney and a motion for the discharge of the jury and refusal of the court to act upon these motions.

[5] Section 1015, Revised Statutes 1929, provides that on appeal copies of these affidavits shall be annexed to and form a part of the record of the cause. This section has been complied with and the affidavits are before us. Finally, Section 1017, Revised Statutes 1929, directs that the truth of every such bill shall be tried by the affidavits required by the preceding sections to be taken and to be filed in the clerk's office.

The court said in the early case of Bowen v. Lazalere, 44 Mo. 383, l.c. 385: "As this statutory mode of bringing up the facts of a case is unusual, and is liable to embarrass the appellate court by the necessity imposed upon it of deciding the truth of the bill, we take the opportunity of saying that it ought to be avoided if possible." And a like unwillingness to sit in judgment was voiced by the St. Louis Court of Appeals in State ex rel. Winsor v. Taylor, 134 Mo. App. 430, 114 S.W. 1029. But we lose our sense of awkwardness in the instant case when we note that the prosecuting attorney did not see fit to file counter affidavits putting at issue the allegations of appellant's. If we had to decide alone between appellant's affidavits and the trial judge's stated reason for not signing the bill, we would not hesitate to rule that the judge's version of the disputed proceedings was the correct one. He of all men would know and remember whether appellant's counsel pressed for a second and more severe reprimand of the prosecuting attorney and for the discharge of the jury. Besides the bill of exceptions gives abundant proof that throughout the two-day trial the judge was alert, precise in his rulings, watchful of and at all times, even solicitous for the rights of appellant, and ever ready to check, reprove or aid counsel for the State and appellant to the ends of justice. But the statute (Sec. 1017) states that we shall try the truth of the bill by the affidavits. And we have before us only the affidavits filed by appellant. We have not the aid of counter affidavits, which were before the court in State v. Hronek, 95 Mo. 79, 8 S.W. 227. An issue of fact has not been presented to us. In these circumstances we are constrained to judge that the truth of the case is fairly stated in the bill as presented by appellant, and therefore that we admit that bi...