51 S.W.2d 39 | Mo. | 1932
The appellant was charged by information and convicted in the Circuit Court of Newton County of possessing intoxicating liquor in December, 1929. As bearing on the punishment to be assessed the information contained allegations of two prior convictions for violation of the prohibition law. The offense was a misdemeanor, Sections 4481, 4524, Revised Statutes 1929, and still is (see *755 Laws 1931, p. 243). But inasmuch as the record was thought to present certain constitutional questions the Springfield Court of Appeals transferred the appeal to this court, its opinion being reported in 37 S.W.2d 497.
The Court of Appeals recognized the constitutional questions as being in the case for this reason. At the outset of the trial the defendant filed a motion to quash the information on the ground that the punishment statute, Section 4524, violates several specified sections of the State Constitution in authorizing heavier penalties for successive offenses against the prohibition law. This motion being overruled, he saved exceptions and also made constitutional objections in his motion for a new trial. All these matters were shown in a bill of exceptions.
[1] But we think the purported bill of exceptions is not sufficiently authenticated. Under our statutes it is required to be certified as a part of the record by the clerk of the trial court. [State v. Kelsay (Mo. Div. 2), 18 S.W.2d 491; State v. Miller,
It is held in State v. Stamper,
[2] The separate transcript of the record proper in this case recites the filing of a bill of exceptions on June 4, 1930, being the 3rd judicial day of the regular June term of court (in other words, not in vacation), but the certificate to this transcript recites merely "that the above and foregoing is a true and correct copy of the judgment *756 and all pleadings in the cause therein mentioned as the same was made and is now of record in my office," etc. This certificate, it will be observed, confines itself to the judgment and pleadings. It does not vouch for the whole transcript, or even for the record entries shown. So we have the order indorsed on the bill making it a part of the record dated June 3, 1930, the filing stamp of the clerk dated November 28, 1930, and the recital in the record proper dated June 4, 1930, all uncertified. We cannot even by going to the very limit of indulgence permit such a record to pass muster.
There being no bill of exceptions, the constitutional questions are not preserved for review. And since these alone would confer jurisdiction on this court, the prosecution being for a misdemeanor, the cause is ordered transferred to the Springfield Court of Appeals. All concur.