232 Mo. 539 | Mo. | 1911
The defendant was convicted in the circuit court of Barton county upon the first count of an information which charged a sale of intoxicating liquors in violation of section 5781, Revised Statutes 1909, of the law relating to druggists and pharmacists. His punishment was assessed at a fine of two hundred and twenty-five dollars, and from the judgment he appealed- to the Springfield Court of Appeals. In the latter court, at the October term, 1909, the judgment of the trial court was affirmed. In due time appellant filed a motion for a rehearing, which
When a case is thus certified to this court for the reason that it is deemed in conflict with a former decision of this court or of another court of appeals, it is not an open question in this court as to whether such conflict does in fact exist, but this court must rehear and determine the same “as in the case of jurisdiction obtained by ordinary appellate process.” [Sec. 6, Amendment of 1884 to Art. 6, Constitution of Mo.; Clark v. Railroad, 179 Mo. 66; State ex rel. v. Rombauer, 140 Mo. 121; Rodgers v. Insurance Co., 186 Mo. 248.]
It is contended by the Attorney-General that only the record proper is in judgment before this court. If this conténtion is well founded, then we are precluded from a review of such alleged errors as consist of matters of exception taken at the trial and sought to be preserved in the purported bill of exceptions.
It is disclosed by the record that the motions for a new trial and in arrest were filed after the court had entered judgment against the defendant. It does not appear that any objection was interposed to the action of the court in pronouncing judgment before the defendant filed his motions for new trial and in arrest of judgment, nor that the defendant thereafter moved the court to set aside' its judgment in order that such motions might be filed within the time allowed by law.
Upon the foregoing state of the record, the motions for a new trial and in arrest of judgment were
Appellant has called our attention to the fact that a proper allocution is not shown in the record, in that the defendant was not asked to show cause, if any he had, why judgment should not he pronounced against him, and he contends that by reason of that fact this case does not fall within the doctrine of the Pritchett case, supra, in which the defendant was asked to show cause before judgment.
The Pritchett Case was an appeal from a conviction for a felony; this case is an appeal from a conviction for a misdemeanor, and the mandatory or directory character of the statute, section 5263, Revised Statutes .of 1909, entitling the defendant to be heard before sentence, depends upon whether the crime charged is a felony or a misdemeanor.
Section 5264 provides: “If the defendant has been heard on a motion for a new trial, or in arrest of judgment, and in all cases, of misdemeanor, the requirements of the next preceding section shall be deemed directory, and the omission to comply with it shall not invalidate the judgment or sentence of the court.”
Under the foregoing statutes, as construed in the decisions cited, this court is liihited to a review of the record proper in this case.
The first count of the information, upon which the defendant was convicted, charged the defendant as a druggist and pharmacist, with having sold intoxicating liquor in violation of section 5781 of the Re vised Statutes of 1909, and sufficiently charges the offense; the defendant was properly arraigned; the verdict is responsive to the charge; the judgment is
