State v. Taylor

| Mo. Ct. App. | Apr 5, 1915

ELLISON, P. J.

Defendant was prosecuted on information before a justice of tbe peace and convicted of disturbing the peace of a family. He appealed to tbe circuit court. In tbe latter court be entered a plea of guilty. Tbe Judge’s docket and tbe entty by tbe clerk of tbe minutes each reads as follows: “Plea of guilty, fine of one dollar and costs. Stay of execution for sixty days.” On tbe regular judgment record tbe following judgment was written:

“State of Missouri v. George Taylor. Comes now tbe defendant herein and enters bis plea of guilty and tbe court assesses bis punishment at a fine of one dollar and costs. It is therefore ordered and adjudged that tbe State recover of tbe defendant tbe said fine and' costs, and that he be granted a stay of execution for sixty days. ’ ’

Defendant failed to pay tbe judgment or costs, and at tbe next term tbe State filed a motion to correct this judgment nunc pro tunc by adding that if defendant failed to pay the fine and costs be be committed to jail as is provided by section 5276, Bevised Statutes 1909. Tbe trial court sustained that motion and defendant appealed. Tbe parties agree that, properly, to comply with the statute, tbe judgment should have included an order of commitment. But defendant insists that no matter what should have been—no matter what error tbe court may have committed, it cannot be made right by supplying a judgment, or part of a judgment, tbe court did not, in fact, render. That is tbe general rule. [Burnside v. Wand, 170 Mo. 531" court="Mo." date_filed="1902-12-10" href="https://app.midpage.ai/document/burnside-v-wand-8014443?utm_source=webapp" opinion_id="8014443">170 Mo. 531; Burns v. Sullivan, 90 Mo. App. 1" court="Kan. Ct. App." date_filed="1901-06-03" href="https://app.midpage.ai/document/burns-v-sullivan-6620092?utm_source=webapp" opinion_id="6620092">90 Mo. App. 1.] But, when a judgment is rendered and tbe statute directs what it shall be, it will be presumed tbe judgment rendered (tbe record showing nothing to tbe contrary) included, or embraced, that which the statute directed should be a part of it and that its omission was the fault of the clerk. [Saunders v. Scott, 132 Mo. App. 209" court="Mo. Ct. App." date_filed="1908-05-25" href="https://app.midpage.ai/document/saunders-v-scott-6622952?utm_source=webapp" opinion_id="6622952">132 Mo. App. 209, 213; Burns v. Sullivan, supra.] In the first of these cases, there was omitted from the judgment as recorded by the clerk, a provision for recovery of costs, which the statute directs shall be included in judgments, and it was held that the judgment being entered in favor of the prevailing party, that fact was sufficient data to justify a nunc pro tunc order making it include a recovery of costs. This view is recently stated by the Supreme Court in Montz v. Moran (not yet reported); 172 S.W. 613" court="Mo." date_filed="1915-01-04" href="https://app.midpage.ai/document/montz-v-moran-8019097?utm_source=webapp" opinion_id="8019097">172 S. W. 613. In the case before us the record shows a judgment of'conviction and that an execution (though it was to be stayed for sixty days) was included in that judgment. This data, supplemented by the statute showing the only judgment which could have been rendered, seems ample support for the ruling of the trial court and the judgment will be affirmed.

All concur.