53 S.W.2d 262 | Mo. | 1932
The plaintiff in error, whom we shall for convenience call the defendant, was convicted by a jury of first degree murder in the Circuit Court of Nodaway County, on change of venue from Andrew County, and his punishment assessed at life imprisonment in the penitentiary. The specific charge was that he killed his wife, Abbie Dimmick, by beating her with a rock. He filed no motion for a new trial, no bill of exceptions and took no appeal; but within one year after judgment and sentence brought the record here for examination by writ of error.
In his brief defendant makes a preliminary contention that a writ of error, "being a writ of right, secures to defendant the right to have all errors committed in his trial reviewed by the proper appellate tribunal" — meaning the whole record should be scrutinized, including matters of exception. On this theory, before the oral argument he filed written Suggestions of Diminution of Record asking this court to require the clerk of the circuit court to send up the original verdict and to make out, certify and transmit a bill of exceptions. This motion was sustained as to the verdict and by agreement he filed written Suggestions of Diminution of Record asking was denied as to the bill of exceptions. Nevertheless certain matters of exception do appear in the record already here, among which are the defendant's application for a change of venue with the trial court's order sustaining the same and the defendant's exceptions thereto. There is nothing in the record concerning the verdict beyond the usual formal recitals — nothing to show it was amended by *243 interlineation, or that defendant objected and excepted. But the photostatic copy of the verdict does show interlineations.
Based on his aforesaid preliminary contention and the foregoing facts, the defendant assigns error on the part of the trial court: (1) in sending the cause from Andrew County to Nodaway County in a different judicial circuit: (2) and in the interlineation of the verdict. The Attorney-General contends the proceedings to which both of these assignments are addressed were matters of exception, and that neither point is properly before this court because not preserved by the filing of a motion for new trial and bill of exceptions below. As to the verdict it is further asserted there is nothing in the record disclosing the facts and circumstances attending the interlineation.
No error is apparent on the face of the record proper. It shows a valid information filed; that there was a waiver of formal arraignment and plea of not guilty; that the trial proceeded on the information, the defendant being present and the jury duly impaneled and sworn; that a verdict was returned in form complying with the law, the defendant granted allocution, and judgment and sentence pronounced. The only questions for decision are the three points presented in defendant's brief: whether the scope of our review extends to the two assignments urged; and if it does, whether either should be sustained.
I. The defendant has cited two or three authorities but none of them sustains his contention that a writ of error brings up matters of exception without a bill of exceptions. We have been unable to find any — anywhere. If defendant is correct there is no need for bills of exception. And as said in Grover Irrig. L. Co. v. Lovella Ditch, R. I. Co.,
[1, 2] The writ comes to us from the common law. Until recent times in England it furnished the only means of removing records in criminal cases to higher courts for review. [26 Standard Ency. of Proceed, p. 615.] Bills of exceptions have been authorized in England since the enactment of the statute of 2 Westminster, 13 Edw. Ch. 1, chap. 31, in 1285. But while thereafter allowed in misdemeanor cases ex gratia, it has been doubted whether the statute extended to criminal cases. [2 Tidd's Practice, p. 863.] Many authorities say flatly it applied only to civil and not to criminal proceedings. [2 R.C.L. sec. 113, p. 140; Freeman v. People, 4 Denio (N.Y.) 9, 47 Am. Dec. 216, 220; State v. Croteau,
The common law and general statutes of England as in force 4th James 1 were adopted in this State in 1816, Lindell v. McNeir,
But in State v. Henry (a slave),
Since 1835, so far as concerns the taking and saving of exceptions in criminal cases, appellants and plaintiffs in error have stood on exactly the same footing. Section 3756, Revised Statutes 1929, provides "when any appeal shall be taken or writof error issued, which shall operate as a stay of proceedings it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause including the bill of exceptions. *245
. . ." This section is substantially the same as Revised Statutes 1835, page 498, section 9, and refers to capital cases where the punishment inflicted is death, State v. Hall,
[3] II. Defendant filed a motion for a change of venue on account of the prejudice of the inhabitants of Andrew, Clinton, DeKalb and Holt counties, these being four of the five counties in the Fifth Judicial Circuit. The remaining county is Platte. [Sec. 1969, R.S. 1929.] The trial court sustained the application but sent the cause to Nodaway County in an adjoining circuit instead of to Platte County, under the concluding proviso of Section 3630, Revised Statutes 1929. Defendant contends this was error; that the venue should have been changed to Platte County in the same circuit, by force of the provisions of Sections 3626 and 3628, Revised Statutes 1929; and that the Circuit Court of Nodaway County for that reason was without jurisdiction. The record recites the defendant excepted to the order, but the law is well settled that this was matter of exception which should be preserved for review only by the filing of a motion for new trial and bill of exceptions. The assignment is, therefore, not open to consideration. [State v. Gamble,
[4] III. The record recites the jury returned into open court a verdict thereafter duly recorded which the jurors upon a poll by the court severally declared to be their verdict, to-wit:
"State of Missouri vs. "Charles D. Dimmick
"We, the jury in the above entitled cause, find the defendant guilty of murder in the first degree, and we assess his punishment at imprisonment in the penitentiary for the period of his natural life.
"THOMAS J. PARLE. Foreman."
The photostatic copy of the verdict shows the same to be in the following form:
"State of Missouri Plaintiff vs "Charles D. Dimmick Defendant
"We, the Jury in the above entitled cause find the defendant guilty of murder in the first degree and we imprisonment assess his punishment at life impreement in the penitentiary for the period of his naurel life.
"THOMAS J. PARLE
The record of the circuit court certified by its clerk imports absolute verity. [State v. Borchert,
But the verdict is a part of the record proper. State v. Modlin,
[5] Where the record brought up is incorrect it is the duty of the complaining party to suggest diminution of record in this court and ask a writ of certiorari. [State v. Orrick,
[7] But the Attorney-General maintains, and we think correctly, that the verdict though irregular is not fatally defective. As is said in State v. Smith,
[8] We have not found a decision dealing with a verdict which had been changed by interlineation. But in this case it is obvious the intention of the jury was to fix the punishment of the defendant at imprisonment in the penitentiary during his natural life. The words scratched out are "life impresment;" the word interlined is "imprisonment." The word natural is spelled "naurel" but could be dropped from the verdict without destroying its meaning; so could the word "impresment." [State v. Jones,
[9] Defendant asserts in his brief the jury consented to the amendment of the verdict at the suggestion and under pressure of the circuit judge. There is no evidence whatever of this. For that matter there is no proof the jury did not themselves change the verdict in the jury room. But all this is matter of exception and cannot be considered in the absence of a bill of exceptions showing what transpired below, and that defendant duly objected and excepted. [State v. Miles,
IV. Defendant in his brief assigns error only on the two grounds discussed in the preceding paragraphs. In the concluding portion of his argument, however, he asks us to refer back to his written petition applying for our writ of error, wherein some thirty errors are assigned. Some of these assignments refer to matters appearing in the record proper; most of their present questions which cannot be raised without a motion for new trial and bill of exceptions as a basis. [11] What we have said disposes of all of them, but we shall mention one specifically. The contention is made that the record fails to show the venue was proven. There is no merit in this contention. It is only when a bill of exceptions shows the venue was not proven that this point is available to a defendant. [State v. Keeland,
The record is free from reversible error and the judgment is affirmed. All concur. *249