The State v. Larew
| Decision Date | 21 November 1905 |
| Parties | THE STATE v. LAREW, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
King & King for appellant.
It is a general rule that an indictment upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act to bring the defendant precisely within it, William v. State, 42 Miss. 328; State v. Latham, 73 Mo.App. 196. An indictment based upon a statute must contain and allege all the forms of expression and descriptive words which will bring the defendant precisely within the definition of the statute. State v. Emerich, 87 Mo. 110; State v Miller, 132 Mo. 297; Gaddy v. State, 8 Tex.App 127. The general rule that it is sufficient to charge the offense in the language of the statute does not mean that it is sufficient to copy the statute into the indictment, or, even where a form is prescribed, to fill in the blanks. The indictment must make a specific application of the statute to the case in hand. State v. Croker, 95 Mo. 389; State v. Terry, 109 Mo. 601. The indictment on its face must state the criminal nature and degree of the offense which are conclusions of law from the facts, and also the facts and circumstances which render the defendant guilty. State v. Krueger, 134 Mo. 273; State v. Terry, 109 Mo. 601; United States v. Cruikshank, 92 U.S. 558; State v. Miller, 132 Mo. 297; Mooer v. United States, 160 U.S. 268; State v. Williams, 42 Miss. 232.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) There is nothing before this court except the record proper. Defendant was tried and convicted at the June term, and on June 29, 1904. On the same day defendant filed his motion for a new trial; this motion was overruled on August 31, 1904. Thereupon defendant filed his motion in arrest of judgment; and on September 23rd said motion in arrest was continued till the next term of court. On November 2nd (being at the October term, 1904) defendant's motion in arrest was overruled, and he was granted an appeal. No bill of exceptions was filed at the June term; neither was any time given in which to file such a bill. According to the numerous decisions of our courts, this failure on the part of defendant deprives the higher court of the power to review the proceedings of the trial court. State v. Miller, 88 S.W. 607; State v. Roderick, 70 Mo. 622; Building Ass'n v. Refrigerator Co., 127 Mo. 501; Howes v. Holmes, 5 Mo.App. 81. (2) The indictment is in the approved form, and follows the language of the statute. It informed the defendant in a clear and concise way what he was charged with; it was, therefore, sufficient. R.S. 1899, sec. 1912; State v. Adams, 108 Mo. 208; State v. Lipscomb, 160 Mo. 125; State v. Cunningham, 154 Mo. 181; State v. Wissing, 187 Mo. 97.
At the April term, 1904, of the circuit court of the city of St. Louis, the grand jury returned the following indictment against the defendant:
"The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that W. P. Larew, on or about the fifteenth day of April, one thousand nine hundred and three, at the city of St. Louis aforesaid, being then and there the agent, clerk, collector and servant of one Mary T. Clark (the said W. P. Larew not being then and there a person under the age of sixteen years), then and there by virtue of such employment and office of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control certain money, to the amount and value of two thousand one hundred dollars, the same being then and there lawful money of the United States of the value of two thousand one hundred dollars, the money and personal property of the said Mary T. Clark, the employer of him, the said W. P. Larew, and that the said W. P. Larew, the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use without the assent of the said Mary T. Clark, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said Mary T. Clark, of the use thereof; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."
He was tried at the June term, 1904, and convicted on the 29th of June, 1904, and his punishment assessed at two years in the penitentiary. He filed his motion for new trial in due time, which was overruled on the 31st of August; on the same day the defendant filed a motion in arrest of judgment, which was continued until the next term of court for the want of time to determine the same. On November 2, 1904, at the October term of said court, the court overruled the motion in arrest, and thereupon sentenced defendant to the penitentiary in pursuance of the verdict. From that judgment and sentence defendant has appealed to this court.
I. At the threshold of the consideration of this appeal we are confronted by the insistence of the Attorney-General that there is nothing before this court for review except such matters as are raised by the motion in arrest filed at the June term, 1904. It appears from the transcript on file that the defendant was tried and all the evidence heard at the June term, 1904, and a verdict rendered on the 29th of June of said year; that his motion for new trial was filed in due time at said term, and was overruled on the 31st of August, 1904, at the same term. It further appears that no bill of exceptions was filed at said June term, 1904, nor did the defendant ask or receive permission to file the same at any time subsequent to the said June term. The question now presented is, will the fact that the defendant filed his motion in arrest at the June term, 1904, and that the same was continued until the October term, 1904, and finally disposed of at said October term, and a bill of exceptions, containing all of the exceptions taken at the June term incorporated therein was filed at the October term, preserve such exceptions for review in this court on this appeal? It has been the uniform practice in this State that all exceptions taken during a trial of the cause must be preserved in a bill of exceptions filed during the term of the court at which they were taken, or within such time after the expiration of the term as the court may grant.
In Riddlesbarger v. McDaniel, 38 Mo. 138, it was ruled that, where a motion for new trial was filed at the term the trial occurred and was continued over and not determined until the next term and no bill of exceptions had been filed at the trial term, such exceptions could be preserved in a bill filed at the term when the motion for new trial was overruled, though at a subsequent term of the court. That ruling has been constantly followed in this State. [Gray v. Parker, 38 Mo. 160; Henze v. Railroad, 71 Mo. 636, 644; Richardson v. Agr. & Mec. Assn., 156 Mo. 407, 57 S.W. 117.]
But it will be observed that in this case the motion for new trial was filed and overruled at the June term. In the determination of this cause it is essential to keep in view the respective offices of a motion for new trial and one in arrest of judgment. The function of a motion for new trial is to call the attention of the trial court to rulings which constitute matters of exception taken on the trial, whereas the motion in arrest reaches only those defects which are apparent on the record, and does not reach such as are required to be brought to the attention of the court by exception, such, for instance, as the giving or refusing of instructions, admitting or rejecting evidence, and like matters. It has been ruled again and again that matters excepted to at one term of court must be saved by a bill of exceptions filed at said term. [State v. Ware, 69 Mo. 332; State v. Taylor, 134 Mo. 109, 35 S.W. 92; State v. Williams, 147 Mo. 14, 47 S.W. 891; State v. Miller, 189 Mo. 673, 88 S.W. 607.]
And the uniform rule has been in this State since the decision in State v. Marshall, 36 Mo. 400, that in order to have such exceptions reviewed in the appellate court there must be a motion for new trial which must appear in the bill of exceptions as overruled and an exception taken to the decision of the court thereon. [Ross v. Railroad, 141 Mo. 395, and cases cited.] It would seem too clear for argument, in view of the foregoing settled rules of practice that if the defendant desired to have his exceptions taken to the action of the circuit court during the trial of said cause considered, it was incumbent upon him to save his exceptions to the overruling of his motion for new trial at the June term, 1904, and to tender his bill of exceptions containing all the matters to which he excepted at that term, and that the continuance of his motion in arrest, whose office is only to direct the attention of the court to errors apparent on the face of the record, did not have the effect to carry his exceptions to the matters in his motion for new trial over to the October term, and this being true, we must hold that...
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