194 Mo. 367 | Mo. | 1906
At the September term, 1904, of the circuit court of Douglas county, Missouri, the prosecuting attorney of said county filed in said court the following information:
“In the circuit court of Douglas county, Missouri, a.t the September term, 1904.
“State of Missouri, vs. ‘ ‘ Charles W alker.
“Fred Stewart, prosecuting attorney within and for the county of Douglas and State of Missouri, upon his oath informs the court that heretofore, to-wit, at the county of Douglas and State of Missouri, at the March term of the circuit court of Douglas county, on the 2nd day of April, 1904, before the Hon. Asbury Burkhead, judge of the 31st judicial circuit of the State of Missouri, and ex-officio judge of said Douglas County Circuit Court, a certain action wherein the State of Missouri was plaintiff and J ames Turner and Victory Williams were defendants upon an information preferred against them for the crime of taking away a female under the age of eighteen years from the care of her father for the purpose of concubinage, came on to be tried in due form of law, the said court then and there having competent authority in that behalf, and the said issue was then and there tried by a jury of the county in that behalf duly sworn and taken between the parties aforesaid; upon which said trial one Chas. Walker then and there appeared as a witness for and on behalf of the said James Turner and Victory Williams, the defendants in the action aforesaid, and was then and there duly sworn and took his oath before the said court, which said oath was then and there administered to the said Chas. Walker by Hon. Asbury Burkhead, judge of said court as aforesaid, having full power and competent authority to administer the said oath to the said Chas. Walker in that behalf,
“Fred Stewart,
1 ‘ Prosecuting Attorney.
“Fred Stewart, prosecuting attorney, makes oath and says that the facts stated in the foregoing information are true according to his best knowledge, information and belief.
. “Subscribed and sworn to before me, this 14th day of September, 1904.
“0. B. Wilson, circuit clerk.”
At the March term, 1905, of the said circuit court, the defendant was duly arraigned and entered his plea of not guilty, and the case was tried to the court and a jury, and the jury found the defendant guilty and assessed his punishment at two years in the penitentiary. Motions for new trial and in arrest of judgment were filed, heard and overruled, and the defendant was sentenced to the penitentiary in accordance with the verdict of the jury. An appeal was granted to the defendant to this court and leave was given him to file a bill of exceptions within ninety days after the 30th of March, 1905.
I. The defendant is not represented in this court by counsel, but it appears from the record before us that within the time alleged for the filing of the bill of exceptions, the defendant tendered to the judge of the circuit court of said county, to-wit, on the 9th day of May, 1905, a paper writing, which purports to be a bill of exceptions, and that paper has been forwarded to this court as a part of the record. There is no file mark or other evidence showing or tending to show when said alleged bill of exceptions was filed in the office of the clerk of the circuit court of Douglas county. From the fact that the clerk transmits said paper in its original form along with the record in this case, it evidently was deposited with him at some time. This alleged
In view of the statute and the above cases construing the same, there was and is no authority for an appellant to make a call upon the clerk to insert the oral evidence in the hill of exceptions, as was done in this case, and therefore it must he held that the defeu dant
And, therefore, the calls made in the alleged bill of 'exceptions for the motions for new trial and in arrest of judgment and the instructions must be held clearly innSufficient to justify a review of them by this court. And the same is true as to the alleged improper exclusion of ■the evidence of certain witnesses offered by the defended as experts in the case. In this state of the record, the -only matter left for review in this court is the sufficiency of the record proper to sustain the judgment of .the circuit court.
II. The information is sufficient. By section 2039, Revised Statutes 1899, it is provided: “In any indictment for perjury, it shall be sufficient to set forth the ^substance of the offense charged, and by what court or before whom the oath was taken, averring such court nr person to have competent authority to administer the •■same, and that the matter or testimony alleged to be
The organization of the court at its regular March term, 1905, is in due form, the oath was administered to the sheriff and his deputies as required by law as to the summoning and returning of jurors to serve at the said term;; the arraignment of the defendant, and impaneling of the jury, and the return of the verdict, and the sentencing of the defendant to the penitentiary for two years, all appear in due form. As no errors appears in the record proper, the judgment of the circuit court must be and is affirmed.