The State v. Miller

• Decision Date: 19 March 1925
• Docket Number: 26039
• Citation: 270 S.W. 291,307 Mo. 365
• Parties: THE STATE v. BERT MILLER, alias RED BERRY, Appellant
• Court: Missouri Supreme Court

270 S.W. 291

307 Mo. 365

THE STATE v. BERT MILLER, alias RED BERRY, Appellant

No. 26039

Supreme Court of Missouri

March 19, 1925

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) The offense charged being murder in the first degree, his plea in abatement was properly overruled. Article 6, Chap. 21, R. S 1919, as amended, Laws 1923. State ex rel. Menth v Porterfield, 264 S.W. 388; State ex rel. Mattacia v. Buckner, 254 S.W. 181. (2) Practically all the objections offered by appellant, to the admission and rejection of testimony were based on either insufficient or no reasons at all, hence not properly preserved for review. (3) The evidence amply sustains the verdict and this court will not interfere therewith. State v. Arnett, 210 S.W. 83; State v. Long, 257 S.W. 208; State v. Hembree, 242 S.W. 914. (4) The instructions given fully and correctly cover all the law applicable to the evidence and carefully submitted defendant's theory of the case to the jury. Those refused contained recitals of law submitted in those given, and were properly refused. (5) No objections and exceptions were made and saved by appellant to the argument of counsel for the State. Hence this point is not properly preserved for review. The facts stated in the motion for a new trial are not proved by the motion itself. State v. Rumfelt, 228 Mo. 454; State v. Whitsett, 232 Mo. 529. (6) The bill of exceptions is not authenticated or identified, therefore, there is nothing before this court for review but the record proper. State v. Howard, 225 Mo. 624.

David E. Blair, J. White, J., concurs; Walker, J., concurs, except as to Paragraph V.

OPINION

BLAIR

Defendant was charged with the crime of murder in the first degree, for killing one Joe Ferguson, in Jackson County, on September 23, 1922. He was convicted of murder in the second degree, was sentenced, in accordance with the verdict, to imprisonment in the State Penitentiary for thirty-seven years, and has appealed.

I. The learned Attorney-General contends that there is nothing before us for review except the record proper, because the bill of exceptions is not authenticated or identified. This is the first question for our consideration.

The transcript of the record contains a recital that defendant presented his bill of exceptions to the court and that the court found the same to be true and correct and that the court signed, sealed and allowed same and ordered that it be filed and made a part of the record in the case.

The clerk of the circuit court certified "that the above and foregoing is a true, correct and complete transcript of the Bill of Exceptions, Information, Record and Proceedings of Court in the case of State of Missouri vs. Bert Miller, alias Red Berry, as the same appears of record and on file in my office." The foregoing certificate appears at the conclusion of the separately bound document, entitled, "Record." Another separately bound document, entitled "Bill of Exceptions," is also before us. Both documents purport to be part of the record in the case of State of Missouri, Plaintiff, vs. Bert Miller, alias Red Berry, Defendant, No. C-970, of the Circuit Court of Jackson County.

Said bill of exceptions purports to be signed by the judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 5, designated under the rules of said court as Criminal Division A. To the separate document, entitled "Bill of Exceptions," no certificate of the clerk is appended. Both the purported record and bill of exceptions bear the file mark of the clerk of this court under date of November 12, 1924, thus indicating that they were filed together. The bill of exceptions also bears the following file mark: "Filed Jun. 25, 1924, W. H. Harper, Clerk. By E. G. Bush, Deputy." The record entry shows that the bill of exceptions, approved and ordered filed and made a part of the record in the case, was filed on June 25, 1924.

Notwithstanding the foregoing satisfactory evidence of the identity of the bill of exceptions now before us with the one approved by the trial court and made a part of the record below, we are now asked to hold that the bill of exceptions, which we have before us, has not been sufficiently identified or authenticated to authorize us to consider it. To hold this would require us to ignore the well-nigh conclusive evidence of its identity. We are satisfied of such identity and, as the bill of exceptions now before us is evidently the same one referred to in the clerk's certificate at the close of the "Record," it is sufficiently authenticated to comply with Section 4103, Revised Statutes 1919.

We are aware that this court has made some highly technical rulings concerning the identity and authenticity of bills of exceptions, but the better and more just rule is to accept a tendered bill of exceptions when it may be fairly gathered from the transcript and the attendant evidence and circumstances that such tendered bill of exceptions is actually the one approved by the trial court and ordered filed. We should require nothing more than to be thoroughly satisfied that the document tendered as a bill of exceptions is, in fact, what it purports to be, a true recital of the proceedings had during the course of the trial and the exceptions saved by appellant.

The better practice is for circuit clerks to bind the transcript of the record and the bill of exceptions firmly together and, in certifying to the correctness of the bill of exceptions at the close of the transcript, to follow the words "bill of exceptions" with the words "hereto attached" or words of similar meaning. If this is not done it would be well to attach a separate certificate of identity and correctness at the close of the bill of exceptions. Such practice would obviate the frequent necessity of appellate courts considering this sort of question and wasting time and energy which might be usefully devoted to the real questions in the case.

II. The testimony offered by the State tended to show that the homicide occurred near Fifteenth and Charlotte streets in Kansas City on September 23, 1922. At about nine o'clock that evening, Joe Ferguson, the deceased, and one Ora Lamb, were standing near a lunch wagon eating sandwiches, when defendant came along the street yelling, "All you toughs get off Fifteenth Street, I just got out of jail." Defendant approached the lunch wagon and took hold of a little girl who came to the lunch wagon. She jerked loose and started to run and defendant caught her and dragged her back. Deceased then slapped the defendant. Defendant said, "What did you hit me for?" Deceased replied that he had a sister at home, and told defendant to let the little girl alone. Defendant then said: "I will go home and get my gun and shoot you." He then went north on Charlotte Street, and soon came running back and began cursing deceased. Deceased said nothing, but advanced toward defendant, who retreated as he advanced, and kept cursing and threatening deceased. Lamb testified that he saw a gun in defendant's pocket. After deceased had followed defendant a short distance south of Fifteenth Street upon the west side of Charlotte Street, defendant suddenly fired three times in quick succession. Deceased fell mortally wounded and died the next day. Defendant ran away, eluded the officers, and fled to the State of Texas, where he remained until June, 1923.

The State's testimony tended to prove that deceased was unarmed and that he did not strike defendant at any time, except to slap him when he took hold of the little girl and that deceased did nothing more than to walk toward defendant. Deceased was twenty-eight years old and weighed about one hundred and ninety pounds.

The chief of detectives testified to a statement made by defendant, to the effect that deceased hit him in the mouth and that defendant and one Hedrick went back to defendant's room and got his gun and returned. They saw deceased on the other side of the street and defendant said something to him and deceased said, "What would you do if I would come over there?" And defendant commenced to shoot and shot at deceased three times. He then went to his room, changed clothes and left.

The defendant testified that he was seventeen years old at the time of the difficulty and was eighteen years old at the time of the trial; that on the night of the homicide he and another boy and three girls met after the picture show was over and were passing the lunch wagon, when deceased put his arms around one of the girls and said: "Come on and go with me, sweetie." Defendant pushed deceased away and said, "Get away from that girl. You are drunk." The girl corroborated this part of the story and said that she left when a fight ensued. Defendant testified that deceased then knocked him down and they started fighting, and defendant backed away with deceased following and fighting him until they got south of Fifteenth Street on Charlotte, when deceased again knocked defendant down and then deceased drew a gun and shot once at defendant, as he was getting up. Defendant then drew his own gun and fired twice and fled because he was scared.

There were other witnesses who corroborated the story told by Lamb as State's witness. Defendant was also corroborated as to the...