263 Mo. 609 | Mo. | 1915
Defendant was convicted in the circuit court of Bollinger county on September 10, 1913, of the crime of breaking the custody of an officer, as denounced by section 4382, Revised Statutes 1909, and he appeals from a judgment fixing his punishment at imprisonment for six months in the county jail. This appeal was first granted to the Springfield Court of Appeals, but, as the offense of which defendant was convicted is a felony, the latter court transferred the appeal to this court. [State v. Underwood, 254 Mo. 469.]
What purports to be a complete transcript of the record proper and bill of exceptions was lodged with the clerk of this court on May 19, 1914. Said transcript was so incomplete that on June 30, 1914, our Attorney-G-eneral filed suggestions of diminution of record, which suggestions were by the court sustained, and the clerk of the circuit court commanded to make out, certify and transmit to this court a full and complete copy of all record entries in his office pertaining to this cause. On September 7, 1914, the clerk complied with our command.
This motion was overruled, and properly so, because we had already done, at the instance of the Attorney-General, the very thing the defendant requested us to do.
Without committing ourselves to the proposition that we will not in any criminal case consider a motion filed in such untimely manner to amend or correct a record, we suggest that it would be far better practice, when a party suggests that any record, document or evidence has been omitted from the transcript, or any record entry, document or evidence has been incorrectly copied into such transcript, to file with his motion suggesting diminution true certified copies of such omitted or incorrectly copied entries, documents or evidence. When this is not done we will exercise our discretion to grant or overrule such motion as justice and the diligence of the movent may seem to demand.
When the record, as in this case, shows that the sentence was pronounced and judgment entered before the motion for new trial was filed it will be presumed, in the absence of a contrary showing, that the trial court was informed by the defendant that he did not desire to be heard on a motion for new trial.
If defendant had moved the trial court to grant him time to file a motion for new trial before entering judgment, and that request had been denied, then such ruling denying time to file a motion for new trial as well as the evidence introduced upon such motion, would became a proper matter of exception. [State v. Carson, 231 Mo. 1.]
It may sometimes occur that clerks will write up judgments against defendants before any judgment has been actually pronounced by the court; in all such cases it becomes the duty of defendant to move the court to vacate or expunge from its records such premature or unauthorized judgment before filing his motion for new trial. Otherwise, the judgment must stand as an absolute bar to the consideration of errors found only in the bill of exceptions.