State v. Seaton

106 Mo. 198 | Mo. | 1891

Gantt, P. J.

The defendant was indicted by the ..grand jury of Jasper county, at the September term, 1889, for murder in the first degree. He was granted a ■continuance to the March term, 1890. At that term he •applied for a change of venue, and this was granted and the cause removed to Lawrence county. At the August term, 1890, the cause was tried, and defendant, was ■convicted of murder in the first degree.

In due time he filed his motions for new trial and in arrest, which being overruled, he was sentenced to be hung on the thirty-first day of October, 1890. He was •sentenced on the fifteenth day of September, 1890, and ■on that day the court gave him leave to file his bill of exceptions “within ninety days from, that date."

On the eleventh of December, 1890, a bill was presented to Judge Joseph Cravens who tried the cause, and he signed it; but it was not filed with . the clerk of the Lawrence circu it court until the fifteenth day of December, 1890; in other words, it was filed on the ninety-first day after the leave was given.

We are met at once with the objection by the attorney general, that nothing in this so-called bill of exceptions can be considered by us on this appeal; that it is no part of the record. The gravity of the.case has caused us to consider this objection with great care, but we have concluded that we have no more power to interpolate into a record extraneous matter, filed one day too late, than we would have, to consider a bill filed •one year out of time. The common law requires a record of all proceedings to be made in term time in the present tense, and, when the term closed, the record was closed.

A practice has prevailed for many years permitting bills of exceptions to be filed in vacation within the time specified by an order of record. And it has been uniformly held not only that the bill must be signed by the judge but be filed by the clerk. A record of a court imports absolute verity. To do so, the record ought to be without suspicion. It ought, at least, be found in the keeping of its lawful custodian. On the fourteenth day of December, 1890, when the ninety days had expired, this bill of exceptions was not on file in the clerk’s office of Lawrence county. When that day closed, the record in this case was closed. No possible blame or reflection can attach to any officer of the court. The judge signed it on the eleventh of December, and no reason appears why it was not deposited with the clerk in time.

The defendant has been granted every consideration both by the circuit court and this court. He was assigned counsel to defend him. When the verdict was against him the court ordered the court stenographer to furnish him a copy of the evidence at the cost of the state. This court permitted him to prosecute his appeal as a poor person without payment of docket fee or •other costs.

We have examined the record proper and find no error in it. We have no right to consider any of the exceptions that are not properly in the record, and it is accordingly our duty to affirm the judgment of the circuit court, and it is so adjudged.

All concur.