The State v. Ryan
| Citation | 22 S.W. 486,120 Mo. 88 |
| Parties | The State v. Ryan et al., Appellants |
| Decision Date | 05 February 1894 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Criminal Court. -- Hon. Rudolph Hirzel Special Judge.
Affirmed.
C. P. & J. D. Johnson and Charles T. Noland for appellants.
(1) The bill of exceptions was filed in proper time. The time for filing the bill of exceptions was extended beyond the term at which the motions for a new trial and in arrest of judgment were overruled by written stipulations, signed by the attorneys of the parties to the suit, which stipulations were duly filed with the clerk of the trial court and by him copied into the transcript of the record now on file in this court. This was a full and complete compliance with the statute in force at the time. R. S. 1889, sec. 2168. All the cases cited by the attorney general were based on former statutes, and have no application to the point now in issue unless it be to show some reasons why the amendment was adopted, by showing how injustice might be done, and justice denied, upon purely technical grounds, and thus inducing the legislature to strike down all technicalities preventing the review of appeals and open wide the doors of appellate courts.
R. F Walker, Attorney General, and C. O. Bishop, Assistant Circuit Attorney, for the state.
(1) The purported bill of exceptions can not be considered by this court. Before the passage of the amended act of 1889 (R. S., sec. 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 theretofore 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, 70 Mo. 622; State v. Hill, 98 Mo. 570; State v. Berry, 103 Mo. 367; McCarty v. Cunningham, 75 Mo. 279; Carter v. Prior, 78 Mo. 222; State v. Scott, 113 Mo. 559; State v. Apperson, 22 S.W. 375; State v. Ryan, 22 S.W. 486; State v. Hilderbrandt, 22 S.W. 805. (2) There is absolutely no error of record in this case. (3) The dying declaration of deceased, as testified to by the widow, was clearly admissible. The exclamations of deceased, "Oh, I am going to die!" "I won't live to see daylight!" and his directions to his wife as to where she would find his money, clearly indicated that his declarations as to how he had received his injuries "were made under a sense of impending death." 1 Greenl. on Evidence, sec. 158; State v. Rider, 90 Mo. 54. The fact that deceased lived for seventeen days after receiving the mortal stroke does not impair the force or competency of the dying declarations, even though he may have expressed a hope of recovery. State v. Kilgore, 70 Mo. 546; State v. Swisher, 26 Grat. 970. Defendant Ryan, at least, was in no wise prejudiced by the admission of this testimony. The evidence abundantly showed that he assaulted the deceased that night, and that he admitted on the following morning he had made the assault and regretted that it had not been fatal. (4) The instructions fully covered the law of the case and were exceedingly favorable to the defendants. (5) The objections to evidence were, for the most part, unaccompanied by any ground for its exclusion and in but very few instances followed by exception. There was no evidence admitted that was incompetent, and no evidence excluded when offered by the defendants. (6) The evidence shows an unprovoked, inexcusable and brutal assault by three men upon one, and the punishment assessed was not commensurate with the crime. The judgment should be affirmed.
OPINION
In Banc
The defendants were jointly indicted for murder in the first degree, and on trial at the May term, 1892, Ryan was on June 25 convicted of murder in the second degree and Murphy of manslaughter in the third degree; the punishment of the former being at ten years, and of the latter at two years, in the penitentiary.
They filed their motion for a new trial June 30, 1892, which was denied at the July term and on the sixteenth day of that month. On July 20, 1892, and during the same term their motion in arrest was filed and also denied on the twenty-first day of July, and they were sentenced on the same day, and on the same day they were granted an appeal, and an order made that such appeal should operate as a supersedeas, etc.
On September 30, 1892, on the next day to the last of the July term, the parties stipulated in writing that the time for filing the bill of exceptions be continued and that the same might be filed at any time during the next term of the court. At the next, the October term, 1892, to wit, November 5, 1892, the parties filed another like stipulation that the time of filing the bill of exceptions might be continued and the same filed at the next term of the court. At the November term a like stipulation was filed by the parties on the twenty-ninth day of December, 1892, making provision continuing the time of filing such bill to January 15, 1893, and that the same might be filed within that time. The bill was signed and filed January 7, 1893.
There is nothing in the record showing an order of court extending the time for filing the bill of exceptions beyond the time at which it was taken, consequently, the stipulations filed from time to time must go for nothing. The statute is express that the bill "may be filed at the time or during the term * * * at which it is taken, or within such time thereafter as the court may by an order entered of record allow," etc. R. S. 1889, sec. 2168.
An order of court extending the time for filing beyond the term is just as essential to the validity of a bill under the amendatory statute, as it was under the practice which had previously prevailed and of which the statute is but declaratory. State v. Berry, 103 Mo. 367, 15 S.W. 621, and cases cited.
In consequence of the foregoing, there is no bill of exceptions before us for consideration, and as there is no error in the record proper, judgment affirmed. All concur.
IN BANC.
Per Curiam (Brace, Barclay, Sherwood and Burgess, JJ.). -- After the announcement of the decision reported in 22 S.W. 486, the case was transferred to the court in banc by reason of the dissent of one of the judges in the second division upon the motion for rehearing. It has been reargued before all the judges. The court approves the action of the second division, with these further observations:
The amendment which was engrafted upon the law of 1885, by section 2168 of the revision of 1889, was intended to regulate one general subject, namely, the mode of obtaining a further extension of time to file a bill of exceptions after the lapse of the term at which an appeal is taken, where the extension has first been secured at that term to a date beyond it. But the amendment did not purport to eliminate any part of the law of 1885 (Sess. Laws, 1885, p. 215, sec. 1), which expressly required the sanction of the court to give validity to a bill of exceptions filed after the final term of the proceedings in any cause. Webster Co. v. Cunningham (1890), 101 Mo. 642, 14 S.W. 625. It merely added certain facilities for longer extensions to be made after the term of the judgment had expired.
By the language of section 2168 a further expansion of time is obtainable either by leave of the court or judge, upon a showing of good cause without the consent of the adverse party, or with such consent (or that of the attorneys), evidenced by writing, irrespective of the action of the court or judge.
Prior to this law it had been definitely held that such a stipulation of counsel, after the term of the final judgment, was ineffectual to enlarge the time allowed to file such a bill. West v. Fowler (1875), 59 Mo. 40. So that the change of 1889 certainly relaxed the rigidity of the existing law on that point.
But does the act carry in its terms any purpose to wholly dispense with the consent or approval of the court, in the first instance, to the prolongation of the life of the cause after the lapse of the term when it would ordinarily close? We think not. If such had been its design the word "thereafter" (where it occurs in the new matter of 1889) would surely have been omitted. That adverb plainly refers to the making of the order of court, extending time beyond the judgment term; and clears away any doubt, that otherwise there might be, of the meaning intended by the lawgiver. It unfolds very plainly the idea that, where the court has once sanctioned the making of the bill beyond the term, a written agreement of parties (or of their counsel) may "thereafter" still further extend the time. But that word would be wholly meaningless if counsel had, from the start, full control of the making of the record of court for a subsequent term without the sanction of the court itself in the first place.
It is a canon of interpretation that all the words of a law should be given force rather than that any part of it should be obliterated by construction. Applying this guide, we see that the word "thereafter" must now be ignored, or rather, written out of the law, in order to arrive at the meaning contended for by defendant's counsel. But we think that word was intended to play a part in expressing the legislative thought; and that some, rather than no, significance should be ascribed to it. We...
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