THE STATE v. WILLIE WHITE, Appellant.
Supreme Court of Missouri, Court en Banc
November 23, 1926.
315 Mo. 1276
2. CONTINUANCE: Bill of Exceptions. To review the action of the court in overruling the application of appellant for a continuance, it must appear, from the record proper, that a bill of exceptions containing the application, the ruling of thе court thereon and an exception to the action of the court in overruling the application, was filed in the trial court and made a part of the record.
3. BILL OF EXCEPTIONS: Authentication. A purported bill of exceptions, which contains no certificate of the circuit clerk as to its genuineness, correctness or authеnticity, cannot be accepted as a bill of exceptions in a criminal case, where the original transcript of the record proper does nоt show that any bill of exceptions was ever filed in the case. And a later certificate of the circuit clerk, to the effect that a bill of exceptions wаs filed in the circuit court on a named date, but which does not show that the purported bill of exceptions on file in this court is the one mentioned in the certificatе, which does not refer to such purported bill and which does not certify that it is a true copy of the one filed in his office, does not prove that the purportеd bill filed in this court is a copy of the original bill filed in his office, and does not cure the lack of authentication apparent from the transcript and the lack оf certification to the purported bill.
Corpus Juris-Cyc. References: Criminal Law, 17 C. J., Section 3420, p. 129, n. 76, 78; Section 3421, p. 130, n. 84; p. 134, n. 9; Section 3422, p. 138, n. 46; Section 3433, p. 146, n. 60; Section 3440, p. 158, n. 7; Sectiоn 3460, p. 168, n. 96. Rape, 33 Cyc., p. 1446, n. 49.
Appeal from Mississippi Circuit Court.—Hon. Frank Kelly, Judge.
AFFIRMED.
Munger & Munger and J. W. Farris for appellant.
The court erred in overruling appellant‘s application for a continuance. State v. Hesterly, 182 Mo. 32.
(1) The information was sufficient. State v. Gilreath, 267 S. W. 880; State v. Riseling, 186 Mo. 521. (2) There is nothing for review except the record proper. There is filed here a purported bill of exceptions, apparently signed and ordered filed by the trial judge. There is no certificate of the clerk. The record proрer filed as a separate document is certified by the clerk as a “full, true and complete copy of the record entries appertaining to the sаid cause as fully as the same appears of record in this office.” The signature of the trial judge is insufficient. Other than the recitals in the bill itself, there is no record filed with rеference to said bill. A bill of exceptions cannot certify to its own integrity.
RAILEY, C.—On February 25, 1924, the Prosecuting Attorney оf Stoddard County filed in the circuit court of said county a verified information, which, without caption and jurat, reads as follows:
“Comes now C. A. Powell, Prosecuting Attorney within and for Stоddard County, Missouri, and upon his oath of office, upon his information and belief, informs the court and charges that at and in Stoddard County, Missouri, on or about the 18th day of November, 1923, William White, in and upon one Velma Jackson unlawfully and feloniously, did make an assault with intent her, the said Velma Jackson, then and there unlawfully, forcibly, and against her will, feloniously to ravish and carnally know; against the peace and dignity of the State.”
The appellant, in his brief on file in this court (pages one and two), alleges: That the cаuse originated in Stoddard County, Missouri; that a change of venue was granted him and the cause sent to the Circuit Court of Mississippi County, Missouri, where it was tried before Judge KELLY and a jury; thаt defendant was charged in the information with assault with intent to rape; that the verdict was adverse to defendant and he was sentenced, in accordance with thе verdict, to pay a fine of one hundred dollars, and to be incarcerated in the county jail for three months; that from the above conviction and sentencе, the defendant has prosecuted his appeal to this court.
Other matters, presented in the case, will be considered in the opinion.
I. The information heretofore set out is sufficient аs to both form and substance. [
II. Appellant assigns as error the action of the trial court in overruling his application for a continuance.
The record prоper shows the filing of such an application, and the overruling of same. In order to review the action of the court in overruling said application, it would have to appear, from the record proper, that a bill of exceptions had been legally filed in the court below containing the application for a continuance, the ruling of the court thereon and an exception to the action of the court in overruling said application. [State v. Baugh, 217 S. W. l. c. 280, and numerous cases cited; State v. Dickey, 231 S. W. 584; Kline Cloak & Coat Co. v. Morris, 240 S. W. 100; State v. Langford, 240 S. W. 168; State v. Barker, 242 S. W. 410; State v. Sanders, 252 S. W. 634; State v. Smith, 256 S. W. 1027; State v. Sadowski, 256 S. W. 755.]
As shown by the record proper, the judgment was rendered and sentence pronounced in this case on August 1, 1924. On August 5, 1925, there was filed in this court a bill of exceptions purporting to have been signed by Judge FRANK KELLY, who tried the case. It contains no certificate of the circuit clerk as to its genuineness, correctness or authenticity. The original transcript of the record proper does not show that any bill of exceptions was ever filed in the case. On October 15, 1925, counsel for appellant filed in this court, as part of their suggestions in opposition to the State‘s motion to dismiss the appeal, an “Exhibit D,” which is a certificate of the Circuit Clerk of Mississippi County, to the effect, that a bill оf exceptions was filed in this cause on July 28, 1925, as shown by the record of said circuit court. The above certificate does not show that the bill of exceptions оn file here is the one mentioned therein, nor does it refer to the bill here, or certify that it is a true copy of the one alleged to have been filed.
The law does not authorize the circuit clerk to send to the appellate court the original bill of exceptions, and if he did so he would be in contempt of thе trial court for so doing. The bill of exceptions in this case does not prove itself, and, in the absence of a certificate of the circuit clerk as to its authenticity and correctness, we are precluded from considering same in passing upon the merits of the case. [State v. Brown, 279 S. W. 98; State v. Keyger, 253 S. W. 364; State v. Little, 248 S. W. 926; Bower v. Daniel, 198 Mo. 317; St. Charles ex rel. v. Deemar, 174 Mo. 122; Butler County v. Graddy, 152 Mo. 441; Ricketts v. Hart, 150 Mo. 64; Lawson v. Mills, 150 Mo. 428; Western S. & W. Co. v. Glasner, 150 Mo. 426; Walser v. Wear, 128 Mo. 652; Pope v. Thomson, 66 Mo. 661; McGrew v. Foster, 66 Mo. 30.]
With the bill of exceptions eliminated from our сonsideration, it becomes our duty to examine the record proper in order to determine whether error exists therein. [State v. Keller, 263 S. W. 172; State v. Keyger, 253 S. W. 363; State v. Whalen, 297 Mo. 241, 248 S. W. 932; State v. Little, 248 S. W. 926-7; State v. Baird, 297 Mo. 219, 248 S. W. 596; State v. Smith, 284 Mo. 175, 223 S. W. 751.]
The information is sufficient as to both form аnd substance, as heretofore stated. There being no error in the record proper, of which defendant can legally complain, the judgment below is accordingly affirmed. Higbee, C., concurs.
PER CURIAM:—The foregoing opinion of RAILEY, C., in Division Two, is adopted as the opinion of Court en Banc. Blair, C. J., Walker, Ragland and Atwood, JJ., concur; Graves, J., absent; Otto, J., not sitting; White, J., dissents.