The State v. Herron

• Decision Date: 20 November 1906
• Citation: 97 S.W. 878,199 Mo. 159
• Parties: THE STATE v. HERRON, Appellant
• Court: Missouri Supreme Court

97 S.W. 878

199 Mo. 159

THE STATE v. HERRON, Appellant

Supreme Court of Missouri, Division Two

November 20, 1906

Appeal from Lawrence Circuit Court. -- Hon. Hugh Dabbs, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) Leave was granted defendant to file his bill of exceptions but no bill was filed. The clerk of that court has copied into the record proper what purports to be the motion for a new trial, the motion in arrest of judgment and the instructions given. But, in the absence of a bill of exceptions, said matters cannot be considered, as they have no place in the record proper. State v. Harvey, 105 Mo. 316; State v. Irwin, 171 Mo. 558; State v Sheham, 25 Mo. 465. (2) Where there is no bill of exceptions and no error appearing in the record proper, the judgment will be affirmed. State v. Wright, 186 Mo 121; State v. Carnell, 186 Mo. 188.

OPINION

FOX, J.

This cause comes here upon appeal by the defendant from a judgment of conviction in the circuit court of Lawrence county for robbery in the first degree. On the 3rd day of January, 1905, the prosecuting attorney of Lawrence county filed an information, duly verified, charging the defendant and Otis Herron, Fred Herron and Thomas Finn with robbery in the first degree. On his application the defendant was granted a severance, and on his application defendant was granted a change of venue on account of the prejudice of the regular judge of that court, Hon. F. C. Johnston. Hon. James T. Neville, judge of the Eighteenth circuit, was called in, but failed and declined to come. By agreement of both sides, Hon. Hugh Dabbs, judge of the Twenty-fifth circuit, was called in and presided at the trial. At the November term, 1905, the defendant was convicted and his punishment assessed at ten years in the penitentiary. After filing unsuccessful motions for a new trial and in arrest of judgment, defendant appealed. At his request, the court granted the defendant leave to file his bill of exceptions till during the next term of court, but no bill was filed; hence, this appeal presents only the record proper for consideration.

While in the transcript before us we find that the clerk of the court, in certifying the cause to this court, has copied in the record proper what purports to be the motions for new trial and in arrest of judgment, as well as the instructions given by the...