State v. Riley

228 Mo. 431 | Mo. | 1910

POX, J.

On the 30th day of November, 1908, the defendant was convicted in the criminal court of Buchanan county of the offense of setting up and keeping a certain table and gambling device, commonly called a roulette wheel, adapted, devised and designed for the purpose of playing a certain game of chance called roulette, for money, and inducing and enticing divers persons to play and bet at and upon said table and gambling device. His punishment was assessed by the jury at imprisonment in the county jail for one year.

The record in this case shows that the verdict of the jury was returned on the 30th day of November, 1908, and that on the same day judgment of sentence was pronounced thereon by the court as follows: “It is therefore ordered and adjudged by the court that said Ciato Biley be confined in the common jail of Buchanan county, Missouri, for the period of one year from the 30th day of November, 1908, for the crime of keeping a gambling device, or until he is otherwise discharged by due course of law.”

Oin page 28 of the record transcript it is shown that on the 12th day of December, 1908, the court overruled defendant’s motion for a new trial, filed on the 7th day of December, 1908, and again pronounced sentence of judgment in the same manner and in the same words as above quoted.

The court’s action in sentencing the defendant a second time must be treated as a nullity, as the defendant had already been sentenced in open court.

Defendant’s motion for new trial was, as stated, filed December 7,1908, which was seven days after the return of the verdict and after judgment. A motion for new trial in a criminal case must be filed before judgment, and within four days after the return of the verdict. [Sec. 2689, R. S. 1899; State v. Pritchett, 219 Mo. 696; State v. Fraser, 220 Mo. 34; State v. Maddox, 153 Mo. 471; State v. Hunt, 141 Mo. 626.] Since the motion for new trial was not filed in time, there is nothing before us for review save the record proper. Furthermore, the defendant’s so-called bill of exceptions is not certified to by the clerk, nor signed by the judge before whom the case was tried, and cannot be considered by this court.

The indictment legally charges the offense, and the record, which we have carefully examined, is without error. The judgment is affirmed.

All concur.