*1 The State v. Ben Appellant. (2d) 905. Banc,
Court en *2 Robert MoMillin for appellant.
T.W. Barnes, Assistant McKittrick, General, Wm. W. Roy Attorney General, Attorney respondent. BOHLING, By information Ben appellant, Gus charged
Wolzenski and Vito Lodato were grand larceny, with Upon theft of vehicle. granted, a motor severance appellant was guilty appeals from imposing found a sentence of years’ imprisonment in the reformatory. intermediate coupe Jake Goodman’s Model A Ford was stolen from Leadwood, of his County, front home St. Missouri, Francois about night 1:30 Whaley, Bert watchman at Lead- a. M. wood, roadster, occupied by saw a Ford men, three up drive coupe. “greasy” men These had on clothes—clothes like mechanics *3 wear. was some than One taller two. man, the other The taller positively by Whaley later identified Gus got out coupe the roadster into the coupe away, following and and drove the roadster, traveling east. The possible by identification was lights. Whaley reason reported of the street the theft Good- to Mr. man, telephoned Trooper information Koch, who High- of the Patrol, Desloge. way Trooper immediately Koch went on (about 61 Highway and within a short distance a mile from his Leadwood) a home roadster, five and half miles from stopped and a Ford occupied questioning Wolzenski. Gus After Wolzenski taking (Missouri 81-825) and the license number 1934 No. and roadster, number proceeded motor he to Leadwood. He there Whaley. telephoned Trooper interviewed Mr. then He White at . Highway Kirkwood started St. Louis on and toward 61. About 25 Leadwood, stopped miles cafe, or so out of he Ozark all- at.tbe night station, Hedgeorth. Hedg- service and interviewed Paul Mr. duty night corth testified he on at the Ozark cafe the 25, 1934, coupe; coupe and serviced a Ford occupied men, having greasy, two dirty clothing, on having each and one defendant, ‘Wolzenski; Ben scar on face—the he and that recognized coupe as the Ford one which he had ridden short Trooper time before with Goodman. Mr. Koch north continued Highway and, distance, 61 on within a short from Goodman’s Mr. right coupe, parked highway Ford on the shoulder of the aban- where, doned. He to Festus about 3:00 then went met m., he a. Trooper White, Trooper defendants who had the under arrest. that, receiving call, telephone after proceeded testified he White Highway 61; on south toward Flat River that he met a road- Ford bearing 1934 bridge, ster Missouri license No. 81-825 on the Meramec around, and, pursuing turned after about a mile roadster miles, stopped it; occupied a half or defendants the car 1184 greasy, on dirty clothing; that he defendants arrested the brought Festus, them to where he met .Koch. The trial clerk’s proceedings authenticates the certificate full, true, complete
“a transcript correct and of the record” cause, “including the bill sen capital tence.” case, duty appel This is not and the rested on lant transcript see that the authenticated the record contained assigned proceedings necessary entries error. for our review of Ross, S. R. Mo. Stat. State [Sec. (2d) 293, (Mo.), 295(7); v. Guinn. ; 627(2) (Mo.), 84 W. State v. Little S. W. 926(1).] complete transcript contains showing any no and, appellant’s trial court motion for new con trial; sequently, any action no trial court on withdraw, may abandon, said motion. movant or waive being motion for new trial consent to its overruled. fIn acting 66, 68., presumption knowledge records, a trial court has its held sentencing judgment against rendition of dur defendant ing new trial was over pendency of his motion for in effect an motion; and, disclosing defendant’s subsequent motion for new trial was overruled to the sen entry tencing judgment, proceeded with its review on the any exceptions merits. makes no mention of That saved case necessity contains discussion of preservation for new trial. of motions While the exceptions taken during review of aof not matters of was unknown the ancient law, exceptions common are now dehors allowed to reach matters *4 Spotts, proper. 917, 925(1, 2), v. 331 55 [Spotts Mo. 977, 980(1-4); Dimmick, 243(I), (2d) 240, S. W. v. 331 State Mo. 2); (2d) 262, 263(1, Hardy, 897, 53 S. 339 Mo. W. State v. (2d) appellate W. The of review now cor is the 593.] rection whether proper of all errors matters of or of ex record ception occurring during trial; progress .the of condition as a alleged precedent upon of not appearing to the consideration error only duly proper pre record not must the face of the the issue be op proper sented trial but a and saved portunity must have been afforded to review rulings cases) by new (in revise its own a motion for 3733, 3736, 1929, 3272, pp. R. S. Stat. [Secs. .trial 3283] Harvey, or other v. 105 appropriate motion. State 886, 16 W. said: “The motion for new trial S. we is no of things we in record cannot conceive liow the of nature exceptions, in unless the place has a a bill of of exception, such ac the basis of an was formed
1185 tually taken and saved when the overruled.” [See, also, Parnell, v. 206 Mo. 105 State S. W. 742(I).] Ac cordingly, uniformly long have held in of line decisions we where the of fails to show an trial, assigned overruling of the motion for therein errors are Harvey preserved cases, supra; not review and Parnell [The (Mo.), 1015; Arrowood S. (Mo.), W. State v. Truedell 76, J., 3339, Missouri cited in 17 cases C. sec. note 21, (for cases) J., 969, *5 affidavit and counter affidavits mentioned of the facts affidavit unduly in his parties witness had so influenced stated testimony, opinion give him false we are cause to him as to rightful trial been in. exercise of its discretion would assignment question. overruled the is affirmed. Di- foregoing opinion by Bohling, C., in PER'CURIAM: —The Ellison, adopted opinion vision J., is Banc. Two as the of the Court en separate concurring opinion in which concurs the result Douglas, Tipton, JJ., Bays, J., Frank, Gantt, C. Leech/ concur. ELLISON, J. I dissent concur (concurring). result — right opinion holding from that an loses assignments exception, if on matters have us review of error exception fails to show he saved an denying his motion There is trial. C.,
principal opinion harmony long line with a Bohling, cases; decisions in both criminal and civil J., majority jurisdictions sec. rule in other is the same. C. [3 802, 864, 3339, But pp. sec. sec. 76.] assignments few cases the courts have examined although failed exception error directed to matters of exception to show an to the State v. 221 Mo. trial. principal case; there opinion one of these. The overrules that unjust
by, tightly rule, it, I as see binds us archaic more ago ought long have been abandoned. exception Corpus Juris, 810, page section for? What objection says: de “An is an takén to a of law. the court on a matter . . . The of an ex- cision of office challenge ception the correctness or decisions of made, rulings or promptly the trial court that such end erroneous, may itself, decisions if corrected deemed review, lay necessary, by if ap- the foundation for their and to tribunal; or, stated, as has been otherwise propriate excepting party prej- have been point out wherein the claims to ruling theory court.” ex- by the trial is further udiced pounded Wilkinsburg, 238 Pa. Fornof v. Atl. ruling upon follows: “The office of an the admission judge rejection testimony important is an one. Where the trial upon objection excepted to, rules and the is not he has right acquiesced in, guide thereafter to assume that it is accordingly. ruling, If counsel does not assent he should judge promptly exception; put ask this serves in, acquiesced upon immediate notice well ’ ’ right "as to a future review. secure first, bearing exception is, Now to advise mind the. *6 by ruling; abide exceptor does not the that the adverse court the trial ruling incorporation for and, second, to the bill earmark the appeal practical up taken is the exceptions be effect of —what applied to the practice, motions for a new Sometimes, course, a ruling trial court will trial ? make or order a, sponte, many exceptor if not most instances the mi first court, objection by action the trial interposes an to some the court’s objection, exceptor ex- ruling the then the saves disallows his ceptions. entirely complaining the party
It is ruling exceptions of the court progress his to a the save (although probably the trial more than half of the circuits treating practice there is established rul- adverse rulings disallowing objections ings, already made, least or at be excepted to.) way For in considered as the fact is made clear exceptor by does not abide the adverse the and the court (if led into further error is not ambushed and of the same it is kind error). Then, losing the party at the end of trial the must file objections picking motion new such of trial excep- preserve desires made as he tions theretofore for review. way exceptor the trial court advised a second time that the singled exceptions standing on his and has particular out the ones Now, motion. when the court overrules covered that motion justice trial, possible saying for new what reason or there objections be advised a court should third time of the objector preserve desires re- ? view say will do to the trial court is ex- misled failure to motion
cept be- thereby, the case will court’s future conduct of be influenced grant nothing done, except be cause is'left leave to file a appeal, approve allow permit and to filing exceptions. appellant And when the follows up adverse new leave obtaining on his trial praying’ appeal, can file a bill of how assign- think standing otherwise than that on the ments motion for trial? of error excep- provides
Now is that-the statute true tions. In the civil procedure code of Section Statutes Revised 1275) “Whenever, (Mo. provides: Stat. any any any pending record, civil suit court of either party opinion except shall shall write his ¿xception pray sign same, person the court to allow and composing shall, true, sign if such bill same.” provides
Section 1009 must be saved filed, exception. of bills and for the allowance And Section (Mo. Aun., 3251), Revised Statutes Stat. makes provisions procedure applicable cases. code Legislature any indicating1 nothing in of these But there appeal express purpose excep invalidate an as to matters of tion of motion for unless *7 during statute new trial. The its terms refers to taken the when progress of the trial.”’ And it considered that “the is is only give for to a motion new trial purpose real of not a errors, lay correct its own but chance review and to court a to errors for review preservation basis for the of these appellate unjust illogical exceptions, only is filing the of bill of not a say appellant taking must to the save the of really procedure step, part appeal. which final is a 16 W. Harvey, It said quoted opinion, motion new trial principal that a excep- part place and the that it has no of exception actually tions was taken the there- unless belongs which a of. the motion But of —whether governed by its bill of —is concealing fact which we is no nature. There doctrine unjustifiable. through years all is harsh have enforced these and other many in this Missouri courts case and latter appellant, I stress civil and cases—and both liberty are involved—has cut off without life been where ground excep- on, merely appeal the bill of of left to stand because exception tions show failed to he had saved trial, although very of motion for new bill face, apparent have plainly its on rulings exception. on review adverse made below matters of general question aspects similar its here somewhat Co., one Smith v. Millers Ins. considered in Ohio Mut. Fire (2d) case, in court en bane aban- S. W. civil term honored bills then rule doned the time rulings par- during filed, preserving exceptions to all adverse goes days back to the when of court. ticular term longhand they as inter- written were had be taken and importance of such not be left posed, could since matters reporters dowe memory, we no frailties had shorthand lawyer stage history early 'procedural every of our At that now. by our exceptions. own preserving his But was accumstomed to encouraged rely system reporting we bar to shorthand reporter. possible There can be the court the record made except does that an doubt about taking only preliminary when it can exceptions; and no court filing a bill appeal of an reporter failed to note merely has the court be misled because preserved. to that is conceded And when it appellants heavy made property are sometimes loss suffer n grievous punishment they cases or criminal cases just grounds appeal actually which were erroneous objected excepted the course exceptions shows, I submit pur- subversive of the very
pose deny for which this other justice like courts were created to irregularities. technical Douglas, Frank, Gamtt, because Leedy Tipton, JJ., Says, G. concur. relation of Geo. use of Missouri Peck B. Dwight Corporation, Relator, Secre H. Brown, Company,
tary State. 105 909. Banc, en
Court sec. notes As 46-49.] motions necessary it is to save to adverse new trial and that the disclose the exception, we, review of matters of absent showing record, justified indulging are not in pre sumption judgment the rendition of was in effect the and, addition, motion for new trial were duly ruling. action saved the court’s in so Insofar as herewith, supra, longer conflicts it should be no followed. We, therefore, only proper Appellant record before us. complaint makes as to matters we -no find granted appellant error therein. presence Allocution was counsel, pronounced sentence was entered. gratia, assignments have considered, We ex the motion sufficiently alleging They error for review. disposed assignments. may promptly be under appellant’s upon sustained motion to strike certain evidence ascer taining intelligent ruling. facts base an sufficient to. failing a-prior not convicted of error similar strike voluntary specific request answer the absence of effect. assignment This, from other aside reasons. The other is that admittedly gave testimony. a witness differs situation false Moberly, from State v. 121 Mo. 365(3), cases, other like the witness’ affidavit (to testimony gave the effect he had concluded false instant ease he matters) on certain forth what witness’ knowl does set true edge knowledge facts orwas facts involved lack view, the trial. With this in he testified and under all the at. p. 1188, 16 C. of the ease sec. circumstances [see testimony witness’ considering sec. its corro 2746], boration, part, prosecuting witness, portion deposition evidence contradictory witness’’ offered matters, affidavit in material the witness’ some clearly knowledge witness did have indicates the some