Opinion
December 20, 1933.
1. CRIMINAL LAW: Appeal and Error: Record Proper. Where the record proper in a criminal case failed to show the verdict, its rendition, the judgment, the filing and overruling of a motion for a new trial and the granting of an appeal, there was nothing before the Supreme Court for review.
2. CRIMINAL LAW: Appeal and Error: Bill of Exceptions. Copies of the sentence and the judgment in a criminal case set out in the bill of exceptions cannot be considered because not a part of the record proper. Rule 13 does not apply to a review in a criminal case.
While it is the mandatory duty of the Supreme Court to examine the record in a criminal case, that rule does not apply where no such record has been properly preserved. [Sec. 3760, R.S. 1929.]
Appeal from Ste. Genevieve Circuit Court. — Hon. I.N. Threlkeld, Special Judge
APPEAL DISMISSED.
Roy McKittrick, Attorney-General, and William W. Barnes, Assistant Attorney-General, for respondent.
The appellants, Alton (Punk) Craft and Ed Morris, were jointly charged by information in the Circuit Court of St. Francois County with an offense under Section 4014, Revised Statutes 1929 (Mo. St. Ann., sec. 4014, p. 2817) — namely, felonious assault with malice aforethought and with a deadly weapon and with intent to kill. The case was tried on change of venue in the Circuit Court of Ste. Genevieve County at the October, 1931, Term thereof. The jury apparently returned a verdict of guilty as to both Craft and Morris, and assessed their punishment at terms respectively, of seven and one-half and ten years in the penitentiary. They appealed but have filed no brief.
The transcript of the record before us is in substantially the same form as the one considered and held fatally defective in State v. Kaiser, 318 Mo. 523, 300 S.W. 716, in that the record proper fails to show the verdict, or its rendition, the judgment, the filing and overruling of the motion for new trial, and the granting of the appeal. Indeed, all that the record proper does show is the information, the proceedings by which the venue was changed from St. Francois to Ste. Genevieve County, the empaneling and swearing of the jury, and the filing of the bill of exceptions. [2] It is true there is a copy of the sentence and judgment as to appellant Ed Morris, but as it is set out and attempted to be preserved as a part of the bill of exceptions, we cannot consider it; and this because our rule thirteen, requiring an examination of record entries and matters of exception, regardless of the place in the transcript where they may appear, has uniformly been held to have no application to the review of criminal cases. [State v. Kaiser, supra; State v. Turpin, 332 Mo. 1012, 61 S.W.2d 945.] It is the mandatory duty of the court to examine the record if it has been preserved. [Sec. 3760, R.S. 1929; State v. Hersh, 296 S.W. 433.] But the rule does not apply where, as here, no such record has been preserved. [State v. Kaiser, supra.]
In this situation there is nothing before us for review and the appeal should, therefore, be dismissed. On account of the severity of the punishment assessed, we have taken occasion to examine into such of the assignments of error as would be open for review (if the appeal were otherwise properly before us) — particularly the charge that the court should have given an instruction on the law of common assault — and find them without merit.
For the reasons stated the appeal is dismissed. All concur.