State v. Dunnegan

258 Mo. 373 | Mo. | 1914

WILLIAMS, C. —

Upon trial had in the circuit court of Ozark county at the February term, 1913, defendant was found guilty of felonious assault, and his punishment assessed at a fine of one hundred dollars.

It appears from the record that the verdict of the jury was returned February 12, 1913, and that upon the return of the verdict and upon the same day, the court pronounced judgment against the defendant. No objection or exception appears to have been interposed by the defendant to this action of the court. Thereafter, on February 13,1913, the defendant filed motions for new trial and in arrest of judgment, which motions were by tbe court overruled and thereupon defendant perfected an appeal to this court.

New°Tr¡air ified too Tate Under tbe above circumstances and absent any objection or exception on tbe part of defendant to tbe action of tbe court in rendering judgment so soon after tbe return of tbe vermotions for new trial and in arrest of judgment having been filed after judgment, were filed out of time and too late to be considered by tbe court. [State v. Fraser, 220 Mo. 34; State v. Pritchett, 219 Mo. 696; State v. Kile, 231 Mo. 59; State v. Rosenblatt, 185 Mo. 114; State v. Briscoe, 237 Mo. 154.] It therefore follows that only tbe record proper is before us for review. [State v. Kile, supra; State v. Fraser, supra.]

AllocutionNot shown by Record. Turning to a consideration, of the record proper, we find tbe information and verdict are in proper form an(i that all proper steps were observed except that it nowhere appears in tbe record that allocution was extended tbe defendant.

Respondent insists that “although the record fails to show that allocution was extended tbe defendant, yet, tbe presumption obtains that tbe court below discharged its full duty in this respect.” We are unable to agree with tbe contention of tbe Attorney-General in this regard. Tbe very purpose of the record proper is to show what transactions occurred in tbe case in tbe trial court (other than matters of exception which must be preserved by bill of exceptions).

If tbe abstract of tbe record, upon its face, shows that it does not purport to set forth a full transcript of tbe record proper, then tbe presumption insisted upon by respondent might well be allowed to prevail, but where, as here, tbe transcript of tbe record is duly certified by tbe clerk of tbe circuit court as required by section 5308', Revised Statutes 1909, and purports to set forth, a full transcript of the record proper such presumption should not prevail. In discussing an analogous situation in the case of State v. Mitchell, 199 Mo. 105, Gantt, J., quotes with approval from a Texas ease the following: “Or it may he contended that the court would not have overlooked so important a feature in the trial of so important a case as the swearing of the jury. We concede that it is not probable that so important a fact was omitted, but it is the very object of making the record to perpetuate the transactions, and the record purporting to state the transaction precisely as it occurred, what right have we to presume that.it occurred in some other way?” [Id. l. c. 107-108.] The rule here applicable was aptly and ably stated by Johnson, J., in the case of State v. Hurst, 123 Mo. App. 39, l. c. 43, as follows: “The fact that the record is conclusive as to the verity of its recitals and professes to state all that did occur precludes the presumption that something not stated therein in fact occurred. Certainly, the verity of a record cannot be impeached by inference nor by the presumption that the officers of the court have done the things they should have done.”

The situation in this case is the same .as that involved in the case of State v. Kile, supra. In that case it was held that: “The failure of the record to show a proper allocution is an error occurring after the verdict and does not affect the regularity of the proceedings before judgment and therefore does not entitle the defendant to a reversal of the judgment and a new trial. [State v. McClain, 137 Mo. 307; State v. Snyder, 98 Mo. 555; State v. Nagel, 136 Mo. 45.]” In that case, the cause was remanded for allocution and proper judgment.

It therefore follows that, by reason of the failure of the circuit court to inform defendant of the verdict of the jury and to ask him whether he had legal cause to show why judgment should not be pronounced against Mm, the judgment must be reversed and the cause remanded, with directions to the trial court to have defendant brought into court for allocution and judgment in accordance with section 5263, Revised Statutes 1909. It is so ordered.

Boy, G., concurs. PER CURIAM. —

The foregoing opinion of "Williams, C., is adopted as the opinion of the court.

All the judges concur.