State v. Thomas
134 S.W. 571
Mo.
1911
Check Treatment
FERRISS, J.

At the March term, 1909, of the circuit court of Platte county, defendant was convicted of a felonious assault with intent to kill, and appeals from the judgment of conviction.

It appears from the record that the verdict was returned and judgment thereon rendered on March 17, 1909, three days prior to the filing of defendant’s motion for a new trial. Section 5285, Revised Statutes *2181909 (R. S. 1899, sec. 2689), provides that the motion for new trial shall be “filed before judgment and within four days after the return of the verdict,” and it has been frequently held by this court that said statutory provision is mandatory. [State v. Fraser, 220 Mo. 34; State v. Pritchett, 219 Mo. l. c. 704; State v. Maddox, 153 Mo. l. c. 473; State v. Brooks, 92 Mo. l. c. 596.]

In the recent case of State v. Carson, 231 Mo. 1, Judge Gantt held that where the court pronounced judgment immediately after a finding of guilty, and before a motion for new trial was filed, and where at the time the defendant excepted to the action of the court in so pronouncing judgment and gave notice that he would file his motion for a new trial, there was no waiver by defendant, because he could not have acted more promptly. In the case at bar there was no objection or exception to the action of the court. The motion was filed too late, and we must hold that there is nothing before us save the record proper.

The indictment properly charges the offense of which defendant was convicted, the verdict and the judgment thereon are in due form, and the record in all respects free from error. The judgment, therefore, is affirmed.

Kennish, P. J., and Brown, J., concur.