The State v. Hilterbrand

• Decision Date: 13 June 1893
• Citation: 22 S.W. 805,116 Mo. 543
• Parties: The State v. Hilterbrand, Appellant
• Court: Missouri Supreme Court

22 S.W. 805

116 Mo. 543

The State v. Hilterbrand, Appellant

Supreme Court of Missouri, Second Division

June 13, 1893

Appeal from Platte Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

R. F Walker, Attorney General, for the state.

(1) The purported bill of exceptions in this case cannot be considered. It was not filed within the time allowed by the court. The record nowhere shows any order of court extending the time of filing the bill of exceptions, or any action of the court whatever upon the preceding stipulation. Before the passage of the amended act of 1889 (Revised Statutes, section 2168), there was no statutory provision whereby a bill of exceptions could be filed after the term had elapsed, but a custom had grown, recognized by this court, by which such bill could be filed after the term, or in vacation, by agreement of parties, sanctioned by order of court, entered of record. The amendment of 1889 is only by statute declaratory of that custom, legalizing what had heretofore been merely prescriptive. And an order of court entered of record is as necessary as before to authorize the filing of a bill of exceptions after the lapse of the term. State v Broderick, 79 Mo. 622; State v. Hill, 98 Mo 570; State v. Berry, 103 Mo. 367; Mac-Carty, v. Cunningham, 75 Mo. 279; Carter v. Prior, 78 Mo. 222; State v. Ryan (decided May 23, not yet reported); State v. Hill, 103 Mo. 367. (2) There is absolutely no error of record in this case, and the judgment should be affirmed.

OPINION

Sherwood, J.

-- The defendant was indicted for an assault with intent to ravish one Polly Tellope. Tried, he was convicted and his punishment assessed at a fine of $ 100 and imprisonment in the county jail for six months, and he appeals to this court.

At the same term of his conviction, on November 29, 1890, by order entered of record, the trial court allowed defendant forty days in which to file his bill of exceptions. On January 7, 1891, by stipulation duly signed and filed with the clerk of the circuit court, the time of filing the bill of exceptions was extended by the parties to the thirteenth of April, 1891. On the eighth of the last named month the bill of exceptions was signed and filed.

I. It is contended on behalf of the state that the bill should not be regarded as a valid bill because not filed within the time allowed by the order of the court. This is regarded as an erroneous view of section...