State v. Graham

256 S.W. 770 | Mo. | 1923

The appellant was charged by information in the Circuit Court of Reynolds County with a violation of the law prohibiting the possession and transportation of intoxicating liquors. The charge was in two counts; one alleging unlawful possession, and the other transportation. Upon a trial to a jury the appellant was convicted and fined one hundred dollars. The offenses charged being misdemeanors, to confer jurisdiction upon this court it was necessary that a constitutional question be timely raised and properly preserved in the bill of exceptions. That the plea in this behalf was timely there is no question; the latter essential, however, to a review in this court was not complied with.

On the day succeeding the return into court of the verdict the court rendered judgment against the appellant in accordance therewith. Thereafter, on the same day, a motion for a new trial was filed and upon being overruled a motion in arrest of judgment was filed. Thereupon the appellant filed an affidavit for and was granted an appeal to this court. This course of procedure was in direct violation of the statute (Sec. 4079, R.S. 1919) which provides among other things that the motion for a new trial shall be filed before judgment. [State v. Baird, 248 S.W. (Mo.) 596, and cases at 598; State v. Sparks, 263 Mo. 609; State v. Dunnegan, 258 Mo. 376 and cases; State v. Briscoe, 237 Mo. 154; State v. Thomas, 232 Mo. 216.] This section has uniformly been held to be mandatory (State v. Hascall, 284 Mo. l.c. 617); and a failure to comply therewith limits our review to the record proper (State v. Keyger, 253 S.W. (Mo.) l.c. 363 and cases). The condition of the record at bar, so far as concerns the time when the judgment was entered and the motion for a new trial filed, is parallel with that in the Dunnegan Case, supra (p. 376) in which we held that the action of the trial court in rendering judgment so soon after the return of the verdict did not tend to cure the failure of the appellant to comply with the statute where, as here, no objection was made or exception taken by the appellant to the court's action; and that only the record proper was before us for review. In the Sparks Case, supra, the late Judge BROWN carefully reviewed this statute, holding that when a judgment was rendered and entered on the record before the filing of the motion for a new trial it became the duty of the appellant to move the court to vacate the judgment and expunge it from the record. Otherwise, it would become an absolute bar to the consideration of errors found only in the bill of exceptions (p. 614).

To attempt to preserve error by excepting to the rendition of the judgment is futile. The judgment is a part of the record proper and no formal exception need be made to its rendition to entitle it to a review by the appellate court. It has no place in the bill of exceptions and cannot be made a part of same by the entry of a formal objection thereto. When made therefore, as at bar, for the apparent purpose of challenging the integrity of the judgment it can lend no aid in preserving for this court's consideration other errors attempted to be preserved in the bill of exceptions.

The record presents no matter properly preserved which can confer jurisdiction upon this court, and it follows that it must be re-transferred to the Springfield Court of Appeals within the territorial jurisdiction of which the trial was had and the judgment rendered. It is so ordered. All concur.