State v. Griffin

98 Mo. 672 | Mo. | 1889

Sherwood, J.

— The defendant was charged by the indictment with murder in the second degree. When tried, he was convicted of that offense, and his punishment assessed at ten years in the penitentiary, and, being sentenced accordingly, he appeals at this court.

Section 3776, Revised Statutes, 1879, has been materially amended by the act approved March 31, 1885. Acts, 1885, p. 219. The amendatory section, so far as necessary to quote, reads as follows: “But it shall not be necessary for the review of the action of any lower court on appeal or writ of error, that the motion for a new trial, in arrest of judgment, or instructions filed in the lower court shall be copied or set forth in the bill of exceptions filed in the lower court, provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court.”

Under the well-settled practice and rule of this court, the evidence, the motion for new trial and in arrest, application for continuance and instructions, in short, all matters of exception not constituting part of the record proper, had to be incorporated in the bill of exceptions, or else they would not be noticed by this court; and the same rule applies in this regard in criminal, as in civil causes. R. S. 1879, secs. 1921, 3635, 3636; State v. Shehan, 25 Mo. 565 ; Jefferson City v. Opel, 67 Mo. 394; Baker v. Loring, 65 Mo. 527; Stevenson v. Saline County, 65 Mo. 425 ; Sturdevant v. Watkins, 47 Mo. 177; State v. Wall, 15 Mo. 208 ; State v. Treace, 66 Mo. 124; Blount v. Zink, 55 Mo. 455; State v. Marshall, 36 Mo. 400 ; Tower v. Moore, 52 Mo. 118; State v. Dunn, 73 Mo. 586; State v. McCray, 74 Mo. 303; State v. Robinson, 79 Mo. 66 ; McCarthy v. McGinnis, 76 Mo. 344.

As already seen, however, section 3776, as amended has so far modified and amended the rule heretofore prevailing, that the motions for new trial, in arrest or instructions, filed in the lower court, need no longer be copied or set forth in the bill of exceptions, “provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent np to the appellate court.” In this case, the motions for a new trial, in arrest, and the instructions are not copied or set forth in the bill of exceptions, nor is there in the bill of exceptions any direction to the clerk to copy the same. So that neither under the old rule, nor yet under the new, can any notice be taken of such matters.

As already seen the amendatory act does not embrace, within its terms, the application for a continuance nor the evidence, consequently a mere reference to these in the bill is not sufficient, either under the old rule nor under the new.

This being the case the only point open for examination is the record proper. There is no fault to be found there ; the indictment is exceptionally good.

And even if we could look at the instructions, though no compliance has been had with the amendatory section above noted, it would avail the defendant nothing, because no exceptions were saved to the giving of any instructions on the part of the state. State v. McDonald, 85 Mo. 539 and cas. cit. The rule in regard to saving exceptions is the same in criminal as in civil causes. Ib.

For these reasons, judgment affirmed.

All concur but Rat, C. J., absent.