The State v. Frey

• Decision Date: 20 December 1926
• Docket Number: 27072
• Citation: 289 S.W. 910,316 Mo. 66
• Parties: The State v. Arthur R. Frey, Appellant
• Court: Missouri Supreme Court

289 S.W. 910

316 Mo. 66

The State v. Arthur R. Frey, Appellant

No. 27072

Supreme Court of Missouri

December 20, 1926

Appeal from Oregon Circuit Court; Hon. C. L. Ferguson Judge.

Affirmed.

North T. Gentry, Attorney-General, and W. F. Frank, Assistant Attorney-General, for respondent.

(1) The information herein properly charges the crime of robbery in the first degree. Sec. 3307, R. S. 1919; Kelley's Criminal Law (3 Ed.) sec. 625; State v. Flynn, 258 Mo. 211; State v. Craft, 299 Mo. 341; State v Affronti, 238 S.W. 109. (2) Many of the alleged errors of which complaint is made in the motion for new trial are not here for review, because not preserved in the bill of exceptions. Statements in the motion for new trial do not prove themselves. State v. Pollard, 139 Mo. 228; State v. Meals, 184 Mo. 259; State v Rumfelt, 228 Mo. 454. (3) The only alleged error in the motion for new trial, which is preserved in the bill of exceptions, is the action of the court in giving instructions numbered one to nine, inclusive. These instructions correctly declare the law and were therefore properly given. (4) The verdict finds the defendant guilty of robbery in the first degree, as charged in the information, and assesses the punishment. This is sufficient. State v. Reich, 293 Mo. 425; State v. Jordan, 225 S.W. 907; State v. Lovitt, 243 Mo. 510. (5) The judgment is in form heretofore approved by this court. State v. Williams, 191 Mo. 214.

OPINION

Blair, J.

On August 26, 1925, and after a severance had been granted to him, defendant was convicted of robbery in the first degree in the Circuit Court of Oregon County. The jury assessed his punishment at a term of fifteen years in the state penitentiary. An appeal was granted from the judgment rendered on the verdict.

No bill of exceptions containing the evidence, rulings of the court, exceptions, etc., as formerly known to our practice, has been filed in this case. On March 29, 1926, there was filed a certified abbreviated or partial transcript which includes the information, the usual record entries, the instructions, the motion for new trial, and the application for continuance. The transcript also includes this recital: "It is admitted by the defendant that the evidence in this cause is sufficient upon which to base the verdict of the jury." The transcript contains the following record recital:

"Now on this 23rd day of March, 1926, comes the defendant herein by attorney in the above-entitled cause, and files this its bill of exceptions herein, which said bill of exceptions has been duly approved and signed by the Honorable Charles L. Ferguson, the judge who tried this cause."

Then follows the usual certificate of true copy under the hand of the clerk and seal of the court.

Section 4102, Laws of 1925, page 199, provides:

"When any appeal shall be taken or writ of error issued, which shall operate as a stay of proceedings it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause including the bill of exceptions, judgment and sentence, and certify and transmit same to the office of the clerk of the proper appellate court without delay; Provided, however, that any abbreviated or partial transcript of the evidence and oral proceedings, in narrative form or otherwise, which the defendant or his (the) attorney for the State may agree upon in writing as sufficiently presenting to the appellate court the issues involved on such appeal, shall be deemed and taken as sufficient on such appeal and shall by the clerk be incorporated in the transcript of the record certified and transmitted by him to the appellate court, instead of the bill of exceptions mentioned above." (Word in parentheses ours.)

This section, though purporting to repeal Section 4102, Revised Statutes 1919, and to enact a new section in lieu thereof, is in effect an amendment of the latter section, leaving it substantially as it was before, with the proviso added. This case is not one in which an appeal stays proceedings. It comes under Section 4103, Revised Statutes 1919, which refers to the transcript mentioned in Section 4102 as "such transcript." The 1925 amendment of Section 4102, Revised Statutes 1919, providing what such transcript shall contain, is therefore applicable to Section 4103 by reason of its reference to said Section 4102.

The State has not challenged the sufficiency of the transcript and we will assume for the purposes of the case, without so deciding, that it is sufficient compliance with Laws of 1925, page 199, section 4102, and Section 4103, Revised Statutes 1919, and that whatever exceptions are noted therein have been properly preserved for the consideration of this court. However, the 1925 Act should not be construed as doing away with the necessity for a showing by an appellant that exceptions were actually taken to rulings relied upon for a reversal, wherever such fact was formerly required to be shown. The purpose of the amendment apparently was to avoid the necessity and the expense of bringing up more of the entire testimony and rulings of the court than appellant relies upon for a reversal of the judgment.

Appellant has filed no brief in this court and we are sent to the motion for new trial to find the assignments of error. The first assignment therein is that the court erred in overruling defendant's application for continuance. The transcript contains a copy of an application for continuance and a record entry showing that it was overruled. It does not appear that any exception was saved to such ruling of the court. This court has uniformly held that exceptions must be saved to rulings of this character and that such exceptions must be preserved by a bill of exceptions. Even under the 1925 Act, appellant must show that exceptions were preserved to the rulings he asks this court to review. The assignment is not properly before us.

Assignment 2 as to improper admission of evidence, assignment 3, as to error in permitting the use of witnesses not indorsed upon the information, assignment 5, as to the failure of the court to instruct on all of the law of the case, assignment 7, as to qualifications of jurors to sit in the case and assignment 8, as to alleged misconduct of certain jurors, have not been brought here for consideration under the transcript appellant has seen fit to file in this court....