author: WALETEE, J. FARIS, P. J.

text:
    THE STATE v. L. S. FLANNERY, Appellant.
    Division Two,
    February 23, 1915.
    1. FELONY: Preliminary Examination: Complaint: Error in Name. An accused is not prejudiced by a mistake found in the complaint in the name of the person he is charged with having feloniously killed, and the complaint being in every other respect sufficient to identify, the crime, he cannot, after having waived a preliminary examination, be heard to contend that no such examination was accorded him.

      2. COMPLAINT: Sufficiency: Judicial Power. A preliminary examination before a justice upon a complaint charging a felony is not an exercise of judicial power and not such a criminal prosecution as is authorized by the Constitution. The sufficiency of the complaint filed before the justice is not to be measured by the rules in regard to indictments or informations, but a complaint is sufficient which states the substance of the felony, the time and place of its commission and the name of the accused.

      E-eld, by FAB.1S, J., concurring, that defendant by waiving a preliminary examination waived the mistake in the complaint as to the name of the person charged to have been killed. By waiving such examination an accused waives all that the justice is required to find, namely, (1) that a felony has been committed and (2) that there is probable cause to believe accused is guilty of its commission.
    Appeal from Howell Circuit Court. — Eon, W. N. Evans, Judge.
    Affirmed.

      J. L. Bess and Green & Green for appellant.
    Before defendant could be charged by information with a felony and be convicted therefor, he was entitled to the security of a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed. Laws 1913, p. 225. The information charging defendant with a felony and on which defendant was convicted, was unwarranted and without authority of law, and upon the motion of defendant and the evidence introduced in support of such.motion, the information should have been quashed. State v. McKee, 212 Mo. 148; Ex parte Buckley, 215 Mo. 93. No information charging a felony can be filed in the circuit court, until complaint is made in writing and upon oath to some magistrate in the county where the offense is alleged to have been committed, setting forth that a felony has been committed. Sec. 5020, R. S. 1909. One of the purposes of the law is to accord to persons charged ■with felonies a preliminary examination to the end that groundless or vindictive prosecutions might not be continued for any length of time. State v. Sassaman, 214 Mo. 695. “It was intended by the law to accord the accused the security of a preliminary examination before he should be charged by information for a capital offense” (now any felony). State v. Gieseke, 209 Mo. 339. The complaint filed before the justice of the peace, charges the defendant with a misdemeanor, and such charge is vague, indefinite, uncertain and incomplete, even as a misdemeanor charge. A justice of the peace cannot hold a preliminary examination and bind a party except for a felony. Therefore, the misdemeanor charge still stands before the justice, against the defendant. Laws 1913, p. 225.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
   WALETEE, J.

An information filed by the prosecuting attorney of Howell county charged the defendant with murder in the second degree in having struck with his fist and killed Olin McConnell. Upon a trial the defendant was convicted of manslaughter in the fourth degree and sentenced to two years’ imprisonment in the penitentiary. He appealed from this judgment, and applied for and was granted a stay of execution upon giving a bail bond, which was approved by the .trial court.

The defendant and the deceased, both young men, boarded with a family named Summers in West Plains. There were a number of other boarders, and on the day of the assault by the defendant which resulted in the death of the deceased the two had some hot words at the dinner-table growing out of a casual remark made by Mr. Summers, the landlord, that he had read that morning of a threatened strike of a large number of railway engineers.

Defendant and the deceased bandied words with each other in a sarcastic vein as to what each thought would be the result of the strike until remonstrated with by Mr. Summers and his daughter.

Defendant finished his meal and went out and sat down on the front porch in company with Dr. Ballenger, another boarder, saying as he came out that “this was the second time that fellow (meaning' deceased) had hutted into him and that he did not have to stand it if he was a preacher; that he might backslide a little, but it would not hurt him to do that.” Ten or fifteen minutes later the deceased, who, upon leaving the table, had gone out at the hack door, came around the house softly humming a tune, and as he reached the end of the porch said pleasantly to the doctor, “Are you going up town to get your mail?” Ballenger replied, '“No, it is a little early yet; I don’t believe I will go.” The defendant, who had not been addressed, said, “I will go with you if you will repeat what you said at the table.” Deceased said, “What did I say?” Defendant replied, “You insulted me.” To which the deceased replied, “Well, if I did I am sorry and I will apologize.” The defendant in the meantime had risen and walked down in front of the deceased, who was standing on the walk, saying as he reached him, “This makes twice you have done that. If you will just step out into the street with me I will whip you until your friends won’t know you.” To this the deceased replied, “No, I won’t go; I don’t want any trouble. If I have hurt your feelings I am sorry and I am willing to apologize.” The deceased then started down the walk towards the front gate, the defendant keeping in front of him. As they went the doctor heard the deceased say, “I have too much respect for this home to have trouble and I don’t want to have any trouble.” Defendant replied, “Come back into the alley and there won’t be anybody know anything about it.” Deceased then stepped aside off of the sidewalk and said, “No, I won’t go with yon anywhere.” This was the last coherent remark the deceased made. Defendant then eanght the deceased by the lapel or collar of his coat and swinging him aronnd facing defendant said, “You dirty, low-down cnr, I am going to whip yon here.” At this defendant struck the deceased with his fist on the temple or side of the head, felling him to the ground. His head struck the edge of the cement or concrete walk, and Dr. Ballenger, who until then had remained sitting on the porch, rushed down to the defendant, fearing that he would again strike the deceased, and said, “For Cod’s sake, don’t do this.” The defendant did not repeat the assault, but asked the doctor if he thought the deceased was hurt. The doctor said he could not tell. They lifted the body off of the walk and laid it on the grass. The deceased during this time was writhing in paroxysms of pain and muttering names said to have been those of his brother and his affianced, and catching convulsively at his head, exclaimed at intervals, ‘ ‘ Oh mother! Oh my head! ” or words of kindred import. He never regained consciousness, but died that night between seven and eight o ’clock. His death was caused by a hemorrhage at the base of the brain, caused either directly by the blow inflicted by defendant or indirectly by the deceased striking his head when falling on the cement walk in consequence of defendant’s blow.

The deceased was a small man,.about five feet and four or five inches in height, weighing 130 or 135 pounds. The defendant was six feet in height and testified that he weighed from 160 to 175 pounds. After striking the deceased the defendant went before a justice of the peace and attempted to enter a plea of guilty to a common assault, but his plea was not permitted to 'be made.

The foregoing presents the material facts testified to by witnesses for the State. Defendant testified in his own behalf. His testimony was utterly at variance with, that of other witnesses, except that of two women who testified for the defense. One of these was a Mrs. Lillian Simpson, who was shown to have been sitting with her back to where the defendant and deceased were standing when the fatal blow was struck and who stated immediately thereafter that she did not know anything of the affair and could not testify in regard thereto; nevertheless, she went on the stand and testified affirmatively and in detail that the deceased was the aggressor. The other was a young woman who was at some distance from where the two men were standing when the blow was struck, whose testimony tended to sustain defendant’s statements. The jury gave no credence, and properly so- under all of the facts, to the testimony of these three witnesses, and time and space need not be occupied in its discussion, there being ample evidence to sustain the verdict.

The killing occurred June 4, 1914. The constable of the township in which West Plains is located went before a justice of the peace and filed a comirlaint charging the defendant with having killed “Olin Connell” by striking him on the head with his fist. Defendant’s contention with regard to the sufficiency of this complaint renders the justice’s docket entries in regard thereto material. Omitting caption, signatures, jurat, certificate as to genuineness and the circuit clerk’s filing mark, all of which are not questioned, these entries are as follows:

“On the 4th day of June, A. D. 1914, before Geo. Halstead, Justice of the Peace within and for the county aforesaid, comes Ben Hollingshad and files complaint against defendant and on his oath says on or about the 4th day of June, A. D. 1914, in Howell county the defendant did then and there willfully and unlawfully and feloniously kill Olin Connell by striking him, the said Connell on the head with his fist.
“Same day I issued warrant for the apprehension of defendant and delivered the same to Ben Hollingshad, constable.
“June 4, 1914, warrant returned executed by bringing before me at my office in Howell township, the body of defendant, as commanded.
‘ ‘ June 4, 1914, comes now the defendant who having seen and heard read the affidavit filed, says that he could not be ready for a hearing until June -15th, hearing set for June 15th and bond fixed at $2000, which was furnished with (name of principal and sureties), and approved by the court.
“June 9, 1914, comes defendant by attorneys, and informs the court that he waives the preliminary hearing heretofore set forth the 15th of June, and the court fixes his bond for $2000 for his appearance at the next term of circuit court, with (name of principal and sureties) as securities.
“Which bond was approved by the court and the same certified to the clerk of the circuit court."

On the 22nd day of June, 1914, the prosecuting attorney of Howell county filed an information charging the defendant with murder in the second degree in having struck and killed Olin McConnell. Motions to quash were filed, assailing the information on grounds dehors the charge itself, in that no complaint had been filed precedent to the filing of the information charging a felony and that the name of the deceased was not properly set forth and that by reason of such defects defendant had not been accorded the right of a preliminary examination as required by section 5056, Revised Statutes 1909, as amended by Laws of Missouri 1913, p. 225. The overruling of the motions to quash is contended by the defendant to have been reversible error.

The Complaint. — Precedent to the filing of an information by a circuit or prosecuting attorney charging any person with a felony, the person charged shall be accorded the right of a preliminary examination (section 5056, as amended, supra). To authorize an accused to demand this right complaint must have been made against him in writing under oath before a justice of the peace of the county, setting forth that a felony has been committed and naming the accused, whereupon the justice of the peace is required to issue a warrant for the apprehension of the person charged. Upon being apprehended the accused may demand or waive a preliminary examination. This court, in State v. Jeffries, 210 Mo. l. c. 320, and in State v. Sassaman, 214 Mo. 695, has fully defined the object and purpose of a preliminary examination, to the effect that the right to same was accorded to obviate the possibility of groundless or vindictive prosecutions which the Legislature evidently deemed might otherwise occur where informations were filed and the deliberations of a grand jury dispensed with.

The authority thus granted was also intended to prevent suspected persons from escaping and to secure their presence for a trial if subsequently indicted or an information was filed against them. The examination, therefore, was in no sense intended as a trial in which the guilt or innocence of the accused was finally determined, but simply that the possibility of an abuse of power by the prosecutor might be prevented, and if the facts adduced satisfied the justice that an offense had been committed and there was probable cause to believe the accused was guilty, his detention was authorized until an information or indictment be found. This being the purpose, it follows that the complaint upon which the examination is based need not be framed with the same particularity as an indictment or information, but will be sufficient if it states the offense in substance so that the accused may know the nature of the charge preferred against him.

There are other cogent reasons why this complaint need not be as definite and certain as an information or indictment.

Ordinarily an arrest cannot be made without a warrant, and a justice has no authority to issue a warrant unless a complaint has been made before him. This complaint may be made by anyone cognizant of the facts, and the requirements of the statute (Sec. 5020, R. S. 1909) are that it shall be in writing and upon oath. Oftentimes it is of necessity made by laymen, who are not only unfamiliar with the terminology of the law, but wholly ignorant of criminal pleading. To hold that a complaint authorized to be filed under such conditions should conform to the rigid rules of criminal procedure would be to destroy the purpose of the statute, which, in addition to the objects stated, provides a way by which the defendant may be legally arrested and, if probable cause is found to exist, detained until an indictment or information may be preferred against him. His legal arrest is, therefore, of equal importance and of more effective force in the administration of the criminal law than the filing of the complaint upon which the warrant of arrest is based. Having accomplished this purpose, the defects and informalities of the complaint, unless it fails utterly to state the substance of the offense with which the accused is charged, should not be held sufficient to invalidate the subsequent proceedings.

In the instant case the complaint charges, not perhaps with the precision and formality prescribed in the books, but with enough certainty to leave no doubt as to the time, place and nature of the offense, that “defendant did then and there willfully, unlawfully and feloniously kill Olin Connell by striking him, the said Connell on.the head with his fist.” This averment suffices to charge manslaughter in the fourth degree. [3 Chit. Cr. L. 783; 3 Bish. New Cr. Proc. (2 Ed.), secs. 501-502; Bish, Dir. & Forms (2 Ed.), sec. 520; Kelly’s Cr. L. (3 Ed.), sec. 503.] . The complaint therefore charged a felony and, aided by the warrant, effected the arrest of the accused, and the requirements of the law of its creation were satisfied. This being true, in what manner was the accused prejudiced by the fact that he was alleged to have killed “Olin Connell” instead of “Olin McConnell?”

Defendant knew the nature of the charge preferred against him, the time when and the place where •it was alleged to have been committed. Possessed of this knowledge, in what respect could he have suffered injury if the complaint had charged him with having struck and killed “John Smith” instead of.O'lin McConnell? The purpose of the complaint and the issuance of the warrant thereon, as we have stated, was to accord- the defendant a right to an examination and to prevent his escape. The complaint was filed on the day of the commission of the crime, and defendant, instead of availing himself of the. right which the law accorded him and at that time raising any and all questions he deemed proper as to the alleged defects of the charge, asked that the examination be postponed. This was done, and before the day appointed for the hearing he waived an examination and entered into a recognizance for his appearance at the circuit court. Under these circumstances, after an information has been filed against him based upon the charge made in the complaint, his motion to quash the information upon the'specious plea that defendant had not been accorded a preliminary hearing was, by the trial court, properly overruled. It has been held elsewhere, and we approve of the ruling, that a defendant to avail himself of defects in a complaint such as is here being considered, should object thereto before the examination. [People v. Smith, 1 Cal. 9.]

Courts should not lend themselves to subterfuges as defenses to criminal prosecutions where not even an intimation of prejudice is made. The time has passed, not only in this State bnt elsewhere, when pure technicalities, in the absence of evidence of well defined injury to the accused, will be permitted to obstruct the enforcement of the criminal law.

In State ex rel. v. Nast, 209 Mo. 708, 728, this court held that a complaint charging a felony before a justice under which a preliminary examination was authorized, did not involve an exercise of judicial power — that while justices, within the well defined limits of their jurisdiction, perform the functions and exercise the powers of courts, they do not as examining magistrates act judicially but ministerially. [1 Bish. New Or. Pr. (2 Ed.), sec. 237; Nast case, supra, p. 730.] We so held in an earlier case (Ex parte Bedard, 106 Mo. 616), and a like ruling was made by the St. Louis Court of Appeals in State v. Hoeffner, 44 Mo. App. 543.

Further than this, the Constitution of this State (section 12, article 2) provides that “no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information.” If, therefore, a preliminary examination before a justice upon a complaint charging a felony is not an exercise of judicial power and not' such a criminal prosecution as is authorized by the Constitution, the sufficiency of such a complaint should not be measured by the rules in regard to indictments and informations, and this could not well be otherwise when the purpose of such complaints is kept in view.

We are, therefore, of the opinion that a complaint is sufficient which states the substance of the felony, the time and place of its commission and the name of the accused. Under a reasonable interpretation of the statute this is all that should be required.

The alleged insufficiency of the complaint whereby it is contended that the defendant was not accorded a preliminary examination is the only error assigned by the able and industrious counsel for the defense. We hold it without merit, which results in an affirmance of this judgment, and it is so ordered.

Faris, P. J., concurs in a separate opinion, in which Brown, J., joins. Brown, J., concurs in result.

FARIS, P. J.

(concurring). — I concur in affirming this case for the reason that I am of opinion that defendant by waiving a preliminary examination waived the error in the complaint as to the name of the person alleged to have been killed by defendant.

The situation presents a case of a technical error; a sort of pit for the feet of the unlearned digged by the Legislature — a pit by the way which has been biennially for years on end, alternately dug by one Legislature and filled up by another.. In passing we recall appreciatively the ingenuousness and candor of defendant’s learned counsel in admitting in oral argument that the preliminary hearing was waived with the deliberate intention thereby to inject error into the case upon its trial below.

If Connell and McConnell are not idem sonans, and obviously they are not (Myers v. DeLisle, 259 Mo. 506; 29 Cyc. 276 and cases cited), I see no safe ground upon which to base an affirmance except that of waiver.

Let me briefly array the facts: ■ Defendant appeared June 4, 1914, and heard and had read to him, the record says, the complaint now attacked as rendering the' information based on it quashable; he then begged the indulgence of a continuance for eleven days so as. to prepare for the preliminary examination, and gave bond that he would appear thereat; on June 15th he again appeared, waived the preliminary examination and suffered his bond to be fixed at $2000, for his appearance before the circuit court to answer any indictment or information which might he preferred against him; he gave this bond and did appear, and on his appearance in the circuit court objected by his motion to quash, for the very first time to the error in the complaint which wrongly recited the name of deceased. I think on these facts he waived the error in the complaint. Likewise I tMnk, but am not called on to decide, that if he had gone into a preliminary examination on the complaint as it stood, he would clearly have been entitled to his discharge thereon.

It is manifest I think, that if a preliminary examination may be waived, and the statute specifically so provides (Laws 1913, p. 225), then it follows that the defendant in exercising his statutory privilege to waive the preliminary examination, likewise must he held to have waived all irregularities in matters connected with such examination. Even- a waiver of the right to a preliminary examination will he implied, •when no such waiver in fact occurred, when the accused gave hail for Ms appearance at the next term of court in a case wherein no complaint whatever had been filed against him (Cunningham v. State, 116 Ind. 433), or when he suffers hirhself to he bound over for trial without objection and after he, in fact, had pleaded not guilty. [State v. Ritty, 23 Ohio St. 562.] Is not the absence of any complaint whatever a more serious defect than a mere error of misnomer in a complaint otherwise good?

TMs state of the law considered, in analogous cases which are stronger in some aspects than the condition confronting us in the instant case, I feel no manner of doubt that defendant may not deliberately amhusli the trial court as was done here, but that he ought to be held to have waived any error and' imperfection in the complaint such as a minor mistake in the name of the deceased.

I think it is to he deduced as a rule in the absence of a statute, that in the final analysis, a preliminary examination is, and has ever been for the benefit of accused; that he may not he unjustly and without proof, or probable cause, incarcerated or forced to find bail. This does not militate in any way against the view taken in State v. Jeffries, 210 Mo. l. c. 320, where it was said: “The preliminary examination after all is but an expedient’ to prevent a suspected person from escaping and to preserve the evidence and keep the witnesses within the control of the'State.” While all this is so, yet ever since prosecutions for felonies have been permitted by information, it in a way cuts in behind the latter view. For though I am mindful of the provisions as to putting witnesses upon recognizance, this could have been reached by some other statutory provision; while the filing .of an information against the accused would immediately put him in jail or force him to his writ of habeas corpus, but for the right he has to have accorded him a preliminary examination. The examining magistrate is not expected, or empow-.. ered, to determine the guilt or innocence of the accused, or to nicely or irrevocably determine the precise offense of which he is guilty. The statute says: “If it appear that a felony has been committed” (not the felony), “and that there is probable cause to believe the prisoner guilty thereof” (Sec. 5036, R. S. 1909), he may let him, to bail if the offense be bailable (Sec. 5039, R. S. 1909), providéd the preliminary examination is not to be had when accused sees fit to waive it. [Laws 1913, p. 225, supra.]

What does he waive? Clearly, I think he waives that which the magistrate was required to find, viz., that a felony had been committed, and that there was probable cause to believe the accused committed it. And by a waiver of such examination accused in effect admits, for all and singular but only for the legal purposes, objects and intents of the preliminary examination, all that such magistrate was required to find, viz., that a crime has been committed and there is probable cause to believe that accused is guilty of its commission. Thereafter it is left to the prosecuting attorney to determine the exact legal name and nature of the offense committed. [State v. Anderson, 252 Mo. 83.] The law then, this view considered, ought not to be, neither do I think it is, that for every small error of a magistrate unlearned in the extreme niceties of the law, prosecutions must be halted after informations are filed and the case sent back for a technically correct preliminary hearing. [State v. Jeffries, supra; State v. Anderson, supra.] Going a little further in analogy : If defendant had pleaded guilty of manslaughter, for that, as the information charged he had killed one Olin Connell, when in fact he had killed Olin McConnell, would relief be afforded him here upon appeal upon the bare point of misnomer of deceased, the information being otherwise sufficient? I think not. So I vote to concur upon the point of waiver alone.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    THE STATE v. JAKE BURNS, Appellant.
    Division Two,
    February 23, 1915.
    1. INFORMATION: Burglary and Larceny In Same Count. Under the provisions of Sec. 4528, R. S. 1909, a charge of both larceny and burglary may be joined in the same count, when the larceny is committed at the time of the burglary and in the building burglariously entered.
    2. BURGLARY AND LARCENY: Acquitted of One. A defendant may be convicted of larceny and acquitted of burglary by the verdict; and where the jury finds him guilty of larceny, and further finds that the larceny was burglariously committed, he cannot complain because they did not also find him guilty of burglary.
    3. -: -: Verdict. A verdict which finds defendant “guilty of larceny, and that the larceny was burglariously committed” is not one unknown to the laws of this State; but is definite and certain in its terms, and forever bars a further prosecution for either the larceny or burglary. 263M038

      4. LARCENY: Recent Possession: Cow Peas: Instruction. Evi- . deuce that defendant and his coindictee agreed to sell cow peas to Ford, and upon reaching an agreement as to the price told Ford the peas were in defendant’s barn and to go to the bam and get them, and Ford subsequently did so, and they were later identified by three witnesses as the cow peas that had been stolen from the storehouse of the prosecuting witness, is sufficient to authorize a proper instruction as to the presumption of guilt arising from the recent possession of stolen property.
    Appeal from Lawrence Circuit Court. — Ron. Carr Mc-Natt, Judge.
    Affirmed.

      Parker Potter for appellant.

      John T. Barker, Attorney-General, and 8. P. Howell for the State.
   FARIS, P. J.

Defendant, convicted in the circuit court of Lawrence county of larceny perpetrated in connection with a burglarious breaking and entry of a building, and sentenced to the penitentiary for a term of two years, after futile motions for a new trial and in arrest, appeals.

The information charged both burglary and larceny in a single count, and since this information is urged as insufficient, we append it below, omitting formal parts, caption and signature, which were conventional. It reads as follows:

“John R. Miller, prosecuting attorney within and for Lawrence county, Missouri, acting herein under his oath of office and upon information and belief, informs the court that at the county of Lawrence and State of Missouri on or about the —— day of April, A. D. 1913, Jake Burns and George Vandergrift, into a certain building and outhouse of 0. W. Wilder there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously to steal, take and carry away certain personal property in the said building and outhouse, then and there kept and deposited, and in said building and outhouse five and one-half bushels of cow peas all of the value of thirteen dollars and seventy-five cents, the personal property of the said C. W. Wilder and Charles Welch in the said building and outhouse then and there being found, then and there feloniously and burglariously did steal, take and carry away, with the intent then and there to deprive the owner of the use thereof and to convert the same to their own use; against the peace and-dignity of the State. ’ ’

The defendant was found guilty of the- larceny charged only; no specific finding as to the crime of burglary being made by the jury. Since a set attack is made upon this verdict, we set it forth below, omitting the signature of the foreman and the caption, thus:

“We, the jury, find the defendant guilty of larceny and that the larceny was burglariously committed, and assess his punishment at imprisonment in the penitentiary for a term of two years. ’ ’

. The evidence tends to show that there were stored in a building belonging to one C. W. Wilder, some twenty-three or twenty-four bushels of cow peas belonging to said Wilder and one Charles Welch, his tenant. The theft' of some five and a half bushels of these peas, worth about $13.75, was discovered by Welch about the first of June, 1913, at which time an outer and inner door to the building in which the peas were stored, showed unmistakable physical signs of having been broken and entered. The peas were theretofore last seen by Welch about April 20, 1913, at which time they had not been disturbed and the doors of the building were closed and nailed.

The evidence further discloses that in April, 1913, the defendant and Yandergrift, his co-indictee (to whom we may say in passing, a severance was granted) sold abont five and one-half bushels of cow peas to one Roland Ford. These peas were taken by Ford from the barn of defendant. It does not appear that defendant was present when Ford got the peas, but he was present when the sale of them to Ford was made and assisted in bargaining them to Ford and told Ford where the peas were. When Ford went to defendant’s barn for the peas, he found only two sacks of peas there, though four sacks had been sold to him. He complained of this to Yandergrift, upon which he was told to go to the barn on the following Friday and the remainder of the four sacks would be there. He did go on Friday, but found only one more sack of peas there. This he took. The remainder of the peas were never gotten by Ford, nor were they ever fully paid for by him.

Several incriminating statements were made by defendant, tending with the other facts in the case to indicate his guilt. The peas found in defendant’s barn at the place he had told Ford they were, and to which place he had told Ford to come for them, were identified by some three witnesses as the peas of Wilder and Welch.

The court gave, among other instructions, the following :

‘ ‘ The defendant is charged in the information with burglary and larceny. You may find the defendant guilty of both offenses, or you may acquit him of both offenses, or you may find him guilty of either of the offenses and acquit him of the other, according as you find and believe from the evidence the facts in the case to be.”

If any other facts are deemed necessary to an understanding of the case, we will set them out in the opinion in connection with the points discussed.

Defendant complains: (a) of the insufficiency of the information to properly charge larceny; (b) of the instruction of the court that defendant could be acquitted of the burglarly and found guily of larceny alone; (c) that the conviction of defendant is for a crime “unknown to either the common or statutory law of this State,” and (d) that there was no proof of defendant’s possession of the peas, and therefore it was error to instruct (as the court did) upon the presumptions of guilt arising from the recent possession of stolen property. Let us examine these contentions.

T. The information is good under the provisions of section 4528, which permits a charge both of burglary and larceny, when the larceny is committed at the time of the burglary and • in the building burglariously entered, to be joined in the same count of the information. The information here is practically, and in all essentials an exact copy of one held good in State v. Moss, 216 Mo. l. c. 438. It conforms to the statute; to the analogous charges in burglary and larceny when separately charged, and when charged in different counts. [Secs. 4520, 4528, 4535, R. S. 1909; Kelley’s Crim. Law and Prac. 609.] It follows that we should, and we do, disallow this contention.

II. We note next the contention that it was error to permit defendant to be convicted of larceny and acquitted (as the facts and the form of the verdict here have the effect of doing) of the burglary. Notwithstanding the lame logic of a verdict, which upon the facts such as are before us in the instant case, finds that defendant stole the cow peas by a burglarious entry of the building in which such peas were stored, and yet in effect acquits him of burglary, it is certainly a matter about which defendant may not complain. If he had been, convicted of. both burglary and larceny, and his punishment fixed at the minimum sentence for both, he must needs have served four years instead of two; yet in such case under the precise contentions now here made by Mm, he would have no valid ground to complain. He is complaining then because the jury “tempered justice with mercyy.” If this mercy was error, he is not in a position to complain of it, for he was the sole beneficiary of the error. Besides, the law is against him, for that this may be done by the jury in this sort of case is well-settled. [State v. Carpenter, 216 Mo. 442; State v. Woods, 137 Mo. 6; State v. Sprague, 149 Mo. 425.]

III. The point urged by defendant that the offense set out in the verdict of the jury is “unknown to the law of this State,” is germane to that.last above dealt with. TMs verdict reduced to its ultimate elements, finds defendant “guilty of larceny, and that the larceny was burglariously committed.” Do the facts warrant the criticism of counsel? We think not.

Viewed in the light of the statute under which this prosecution was had (Sec. 4520, R. S. 1909), it is plain that any larceny is a felony, regardless of the value of the property stolen and of whether such value is greater or less than thirty dollars, when such larceny is committed in a place which is the subject of a burglarious entry and while in the act of perpetrating a burglary therein. [State v. McGuire, 193 Mo. 215.] TMs verdict may be somewhat inartificial and may not be, when weighed in the scale of the extreme niceties of the law, in all things exact; but is there, or can there be, any doubt as to what the jury in the case meant? It is not uncertain, or indefinite, or ambiguous, and he who runs may read, that by it the jury meant to find, and did find, that defendant after a burglarious entry of the building, and while in said building pursuant to such burglarious entry, committed a larceny therein, of which larceny so burglariously committed, they say he is guilty. [Sec. 4520, supra; sec. 4525, supra.] The verdict is readily understood; it is so definite and certain that defendant can never again be prosecuted for either the larceny or the burglary charged in the information; for its effect is, as we say above, to find him not guilty of the burglary charged. It is responsive to, and in entire accord with, the charge in the information ; with the facts shown by the proof, and with' the instructions of the court (State v. Miller, 255 Mo. 223); futhermore, it forever precludes a second conviction for any offense growing out of the charge here, or upon the facts in evidence. To require more than this of any verdict would be too technical to be fair or sensible. We feel that we ought to disallow this contention.

IY. The contention that the instruction of the court as to the presumption of guilt arising from the recent possession of stolen property, would be good if it were borne out by the facts. It is the law, as learned counsel for defendant contends, that to justify this instruction there must be proof of exclusive possession in defendant. [State v. Drew, 179 Mo. 315.] Here the proof is that defendant and another agreed to sell the peas to Ford, and upon reaching an agreement as to the price, told Ford that the peas were in defendant’s barn and that he (Ford) could go to the barn and get them, which Ford subsequently did. One charged with stealing a dollar or a pocket knife might reasonably contend that the possession thereof in order to raise the presumption referred to, should connote the presence of the article upon or near the person of the accused, but not so in the case of a horse, or a steam boat, or saw logs, or five bushels of peas; especially wbeu as here, there is ample proof of knowledge that the property was on defendant’s premises. The point is not well taken.

Having gone over the whole record, and pretermitting the moral effect of the almost absolute identification of the stolen peas as being those of Wilder and Welch, upon the time-honored similitude, i£as like as two peas,” we find no error in it which has been saved properly for our review. It follows that it should be affirmed, which is accordingly ordered.

Walker and Brown, JJ., concur.


author: WALKER, J.

text:
    THE STATE v. FRANK SHUSTER, Appellant.
    Division Two,
    February 23, 1915.
    REPUTATION OF DEFENDANT: For Peace and Quiet: Not Put in Issue. The general rule in regard to the admissibility of testimony to affect a defendant’s credibility as a witness when he testifies in his own behalf, is that the State may offer evidence showing his general reputation either for truth and veracity or for general bad character, although he may have offered no testimony concerning his general reputation; but if he does-not put his reputation for peace and quiet in issue by offering testimony relating thereto, testimony concerning that cannot be introduced by the State, and if introduced over his objection and exception is reversible error. The reason of the rule is that, while evidence is admissible to show appellant’s bad character generally, as affecting his credibility, testimony as to his being of a violent or turbulent disposition is no evidence of such bad character, and hence is inadmissible.
    Appeal from Bates Circuit Court. — Hon. G. A. Calvird, Judge.
    Reversed and remanded.

      Harvey C. Clark, J. F. Smith and J. A. DeArmond for appellant.

      The trial court erred, in permitting the State to impeach the general reputation of the defendant for peaceable conduct, such reputation not having been put in issue by the defendant. State v. Becker, 194 Mo. 288; State v. Richardson, 194 Mo. 342.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    We are of the opinion that the court committed prejudicial error in permitting the State, over appellant’s objection and exception, to impeach the general reputation of defendant for being a peaceable and law-abiding citizen, without that' issue having been thrust into the case by the defendant, whose sole province it was to make that an issue. We regard the rule as well and rightfully established in this State and its enforcement will prevent the conviction of those who are accused of a crime of which they are not guilty but are convicted on “general principles.” The trial court having permitted the State over the objection and exception of appellant to impeach his reputation for peace and quiet, under the authorities below cited, the case must be reversed. State v. Beckner, 194 Mo. 281; State v. Richardson, 194 Mo. 326; State v. Wellman, 253 Mo. 202; State v. Hull, 20 L. R. A. 616 (notes).
   WALKER, J.

Charged with murder in the first degree in having shot and killed George W. Booth in Bates county in April, 1913, appellant was, upon a trial, convicted of murder in the second degree, and his punishment fixed at ten years ’ imprisonment in the penitentiary. Following the usual procedure he brings his case here for review.

A statement of the facts as to the homicide is unnecessary on account of prejudicial error admitted by the Attorney-General in regard to the improper examination of certain witnesses.

The record in this regard, which is all we deem necessary to set forth, is as follows:

The appellant had testified’ in,his own behalf. Counsel for the prosecution thereupon introduced witnesses, who, in addition to being interrogated as to appellant’s reputation for truth and veracity and general bad character, were asked as to his reputation as a peaceable law-abiding citizen. He had not in any manner made this an issue in'the case.

The general rule in regard to the admissibility of testimony to affect a defendant’s credibility as a witness when he testifies in his own behalf, is that the State may offer evidence showing his general reputation either for truth and veracity or for general bad character, although he may have offered no testimony as to his general reputation; but if he does not put his reputation for peace and quiet in issue by offering testimony relative thereto, evidence in regard to same cannot be introduced by the State. The reason adduced for the rule being that, while evidence is admissible to show appellant’s bad character generally, as affecting his credibility, testimony as to his being of a violent or turbulent disposition is no evidence of such bad character, and hence inadmissible. This rule has met with the express approval of this court in State v. Beckner, 194 Mo. 281, and later in State v. Richardson, 194 Mo. l. c. 343..

It follows, therefore, that the admission of the testimony complained of was error and that this ease should be reversed and remanded, and it is so ordered.

All concur.


author: WILLIAMS, C. PER CURIAM.

text:
    THE STATE v. HAYDEN WILLIAMS, Appellant.
    Division Two,
    February 23, 1915.
    1. RAPE: Penetration: Proof: “Ravish.” Where the prosecutrix in a trial for rape testified that the defendant, while holding her on the floor, got around in front of her, pulled up her clothing, and “ravished” her, there is sufficient proof of penetration, the word “ravish” so used necessarily including the act of penetration.
    2. -: Evidence: Use of Force. The evidence in a trial for rape held sufficient to justify the jury in finding that the defendant committed the act forcibly and against the will or consent of the prosecutrix.
    A.ppeal from Pettis Circuit Court. — Hon. Hopkins B. Shain, Judge.
    Affirmed.

      A. L. Shortridge and W. D. Steele for appellant.

      John T. Barker, Attorney-General, for the State; - E. 0. Jones of counsel.
   WILLIAMS, C.

Upon an information charging him with forcibly ravishing the prosecutrix, defendant was circuit court of Pettis county, found guilty, and his punishment assessed at twelve years in the penitentiary.

The evidence upon the part of the State tended to establish the following facts: The offense occurred about eleven p. m., January 19, 1914, in the bathroom of the O. K. Barber Shop in Sedalia, Missouri. Prosecutrix, a colored girl,. 18 years of age, was employed as a domestic at the home of William H. Powell, Jr., and early on the evening in question she left the Powell home intending to go to the Armory Hall in Sedalia for the purpose of attending a dancing school conducted for colored people. She intended to have a girl friend accompany her to the dancing’ school and was on the street going to the home of her friend when she met the defendant, a colored man 28 years old. Defendant offered to accompany her to the dance hall and prosecutrix accepted the invitation. They arrived at the dance hall before the crowd had assembled.' Defendant suggested that they take a walk. They started for a walk and stopped at a restaurant where defendant drank a bottle of beer and prosecutrix drank a Manhattan cocktail. They remained at the restaurant for about 15 minutes and then returned to the dance hall where they remained until about ten o’clock. At the dance hall .defendant was very attentive to prosecutrix, teaching her to dance.

When the time came for departing, defendant suggested that he and a young boy, who lived with him, be permitted to take the-prosecutrix home. Prosecutrix consented to this arrangement and the three left the dance hall together.

On their way they stopped in front of the O. K. Barber Shop, the place where defendant was employed as porter. Defendant stating that he desired to stop for a moment,- unlocked the door and went into the barber shop. In a short time he returned to the door and invited prosecutrix and the boy to come inside and wait for him. This invitation was accepted. The defendant and the boy stepped to one side in the barber shop and the boy then left the shop and in a short time returned with two bottles of beer. The defendant took the beer from the boy at the door of the shop and told him that he could go back to the dance hall. The boy then departed.

Defendant thereupon locked the front door of the shop and asked prosecutrix to drink some beer. Prosecutrix refused and told the defendant that she had promised to be home early that evening and demanded that he take her home. Thereupon defendant forcibly pushed prosecutrix into the bathroom. In the bathroom defendant took hold of prosecutrix’s hands and began to tell her how much he liked her. She tried to free herself from his hold but was unable to do so. He continued to talk to her and she said he “insulted” her and that she refused his request. Defendant then stood between prosecutrix and the door to the bathroom and took off his coat and trousers and took a towel from his coat pocket. Prosecutrix thought defendant was going to chloroform her. All this time prosecutrix was crying and begging defendant to take her home and trying to free herself from his presence. She became frightened and fell on her knees. Defendant then put his overcoat on the floor and again “insulted” her and she refused. Defendant then placed his hand upon prosecutrix’s shoulders and pulled her backwards upon the floor and while holding her in this position, got around in front of her, raised up her clothing and “ravished” her. Prosecutrix testified that she was “crying as loud as she could” all this time and striking defendant and doing all she could to resist him.

After this occurrence, prosecutrix indicated her intention to go home and defendant told her that if she went home at that time of night the people for whom she worked would “fire” her and suggested that since defendant’s wife was not at home she go to his house and stay all night with him. This she refused to do. Defendant then opened the front door of the barber shop and prosecutrix stepped out on the street and started home. Defendant followed, holding her by her arm, trying to persuade her to go home with him. About this time they passed, on the street, Major James and Lieutenant Collins, officers of the State militia. These two witnesses noticed that prosecutrix was crying and that defendant and prosecutrix were having trouble. The prosecutrix jerked away from the defendant and rushed up and grabbed the arm of Lieutenant Collins. Defendant came up and pulled her away from Collins and she thereupon tried to grab the arm of Major James. The witnesses asked her what was the trouble. Prosecutrix was crying and told them that she wanted to go home. The prosecutrix then ran away from defendant and entered Snyder’s Confectionery Store where she called up the Powell residence, stating over the telephone that a man had mistreated her and that she was afraid to come home alone. The defendant followed her into the confectionery store and tried to quiet her but being unsuccessful, he left the store. A few minutes later, four small white boys accompanied prosecutrix to the Powell home and upon arriving at the Powell home between eleven and twelve o’clock p. tía., prosecutrix was crying and in reply to a question stated that she had been “ruined.”

The underclothing worn by prosecutrix on the night in question and afeo a sheet from the bed on which prosecutrix slept the remainder of the night were soiled with blood stains. It was further shown that this was not the prosecutrix’s menstrual period. The underwear and sheet were introduced in evidence. Prosecutrix further testified that the treatment given her by defendant caused her severe pain. Prosecutrix testified that she had taught one term of school about a year prior to this alleged offense.

The evidence upon the part of the defendant tended to establish the following facts: Defendant denied that he had sexual intercourse with the prosecutrix at any time. That on the evening in question the prosecutrix telephoned him to meet her and take her to the dance, and that upon arriving at the dance hall prosecutrix suggested that they go to the restaurant and get something to drink and that later upon their return prosecutrix suggested that they get some beer at the barber shop. That when they reached the barber shop, the defendant noticed a Kansas City paper laying in front of the door and (because they bad been losing the paper) unlocked the door to place the paper inside. Prosecutrix suggested that they get some beer and be sent the boy after some beer and whiskey and that he went to a store to get some chewing gum.

Defendant and the boy returned to the barber shop and the three remained together in the barber shop all the time that the prosecutrix was there. That the prosecutrix drank the two bottles of beer and some of the whiskey and that she became intoxicated and that her action on the street afterwards was due to the intoxication. Defendant was arrrested .and charged with the crime the following day. The boy corroborated the testimony of the defendant and stated that he was present at the barber shop during all the time that the prosecutrix was there and that when the defendant stepped out on the street to get the chewing gum, prosecutrix asked the boy for a towel and that he gave her a towel and she retired to the bathroom and later came out into the barber shop where she drank the beer and some of the whiskey. When the three left the barber shop the boy returned to the dance hall and he stated that in a short time thereafter the defendant came back to the dance hall.

Defendant offered evidence tending to show that the reputation of the prosecutrix for virtue and chastity and truth and veracity was bad. In rebuttal the State offered evidence tending to plove that the reputation of the prosecutrix in that behalf was good. The State offered evidence tending to show that the defendant had been convicted several times of various misdemeanors. Major James and Lieutenant Collins said that prosecutrix did not appear to be drunk at the time they saw her on the street having trouble with the defendant.

The only point urged as a ground for reversal by appellant is that the evidence is insufficient to support the verdict. In this behalf it is insisted (1) that penetration was not proven; and (2) that the proof shows only a reluctant consent and fails to show that the act was accomplished by force as contemplated by the statute. These will be discussed in their order.

I. Concerning the first proposition the testimony of prosecutrix was that after she refused his requést (which she denominates as an “insult”), defendant forced her to assume a position on her back upon the floor of the bathroom and while holding her down in that position, got around in front of her, pulled up her clothing and “ravished” her. The word ravish is the word used in the statute defining the crime. The word is one of plain English and has a well defined meaning. Webster’s definition of the word ravish, in the sense here used, is “to have carnal knowledge of [a woman] by force and against her consent; to rape.” The term carnal knowledge is synonymous with the term sexual intercourse. [Webster’s New International Dictionary, title, “carnal.”] It therefore follows that the word “ravished” when used with the context shown by the testimony must necessarily include the act of penetration. The word “intercourse” when used with like context was held by this court to be sufficient proof of penetration. [State v. Devorss, 221 Mo. 469, l. c. 476.] This point is ruled against appellant.

II. Concerning the second proposition, prosecutrix testified that defendant shoved her into the bathroom &^ei‘ ije had locked the front door of the barber shop. In the bathroom he “insulted” her and she refused him. He then took a towel out of his pocket and she was “scared to death,” thinking he intended to chloroform her. She was crying as “loud as she could” and begging him to let her go home. He stood between her and the bathroom door and took off his coat and trousers and then pulled her down on to the floor on her back in which position he held her while he pulled up her clothing and ravished her. During all this time she resisted him all she could by striking him in the face and by trying to push bitn away; that he held her on the floor and she was unable to get away from him. The evidence further shows that immediately after the occurrence she was seen crying on the street, trying to free herself from the hold of defendant; that as soon as she freed herself she hastened to a telephone in a nearby store and called up the Powell home and informed them that she had been “mistreated” by a man and was afraid to go home alone. A few minutes later four small boys escorted her home. Upon her arrival there she was crying and in answer to an inquiry said she had been “ruined.”

The above evidence was certainly sufficient to justify the jury in finding that defendant committed the act forcibly and against the will or consent of the prosecutrix.

Finding no error in the record it follows that the judgment must be affirmed. It is so ordered.

Roy, G., concurs.

PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: BROWN, J.

text:
    THE STATE v. ASA SPARKS, Appellant.
    Division Two,
    February 23, ,1915.
    I. APPEAL: Felony. Where the offense of which defendant was convicted is a felony, his appeal |s to the Supreme Court, notwithstanding his punishment was fixed at imprisonment in the county jail.

      2. -: Diminution of Record: Suggestion Accompanied by Certified Copies. While the Supreme Court does not hold that in no criminal case will it consider a motion suggesting a diminution of record and praying for an order compelling the clerk of the trial court to send up a complete transcript, filed on the very day the case is set down for argument, yet it suggests that it is far better practice, when such a motion is filed, that it be accompanied by certified copies of the record, document or evidence which have been omitted from the transcript or incorrectly copied therein; and when that is not done, it will exercise its own discretion to grant or overrule such motion.
    3. -: Motion for New Trial: Filed After Judgment. When the record in a criminal case shows an allocution, and that the motion for a new trial was not filed until one day after sentence was pronounced and judgment entered, nothing contained in the purported bill of exceptions can .be considered on appeal.
    4. -: -: -: Allocution: Presumption. When the record on appeal shows that the sentence was pronounced and the judgment entered before a motion for a new trial was filed, it will be presumed, in the absence of a contrary showing, that the trial court was informed by defendant that he did not desire to be heard on a motion for a new trial.
    5. MOTION FOR NEW TRIAL: Filed After Judgment: Request for Time. If the defendant moves the court to grant him time in which to file a motion for a new trial before entering judgment and that request is denied, then such ruling and the evidence introduced upon such motion become matters of exception.
    6. -: -: Premature Entry. If the clerk writes up a judgment before one has actually been pronounced, as sometimes occurs, it becomes defendant’s duty to move the court to vacate or expunge from its record such unauthorized judgment before filing his motion for a new trial. Otherwise, the judgment must on appeal stand as an absolute bar to the consideration of errors found only in the bill of exceptions.
    7. APPEAL: In Criminal Case: Short Method. A certified copy of the judgment of the circuit court and order of appeal, serves no useful purpose in a criminal cause. [Overruling, on this point, State v. Short, 250 Mo. 331.] If a review only of the record proper is desired a transcript of the entire record proper should be filed.
    •8. --: -: No Bill of Exceptions: Review of Record Proper. Where no motion for a new trial was filed until after judgment and sentence, and the record proper shows an information legally sufficient to charge - defendant with the offense of which he was convicted, that he waived formal arraignment, was found guilty and his punishment fixed according to the statute by a jury duly impaneled and sworn, and that lie was accorded a allocution, after which sentence was duly pronounced in accordance with the verdict of the jury, and fails to show anything further in regard to the motion for a new trial, the judgment will be affirmed.
    Appeal from Bollinger Circuit Court. — Hon. Peter H. Huck, Judge.
    Affirmed.

      J. W. Caldwell and William M. Morgan for appellant.

      John T. Barker. Attorney-General, and Shrader P. Hoioell for the State.
    (1) Where the information charges a felony and the defendant is convicted as charged, it remains a felony for the purposes of an appeal, even though the punishment assessed is a jail sentence. Sec. 4382, R. S. 1909; Art. 6, sec. 12, Constitution; Section 5 of 1884 Amendment Constitution; State v. Gilmore, 28 Mo. App. 561; State v. Melton, 117 Mo. 618; State v. Zinn, 141 Mo. 329; State v. Herrick, 158 Mo. App. 487; State ex rel. v. Foster 187 Mo. 603; State v. Woodson, 248 Mo. 705; State v. Underwood, 254 Mo. 469. (2) The motion for a new trial having been filed after judgment, there is nothing before this court for review but the record proper. The amended record affirmatively shows that the jnry returned their verdict on September 10, 1913, and immediately thereafter, without objection or exception, the court pronounced judgment and sentence against the defendant. On the following day the defendant filed his motion for a new trial, which was overruled. Under the express terms of Sec. 5285', R. S. 1909, the motion for a new trial must be filed before judgment, in order to preserve matter of exception for consideration on appeal. The only exception to this rule is where judgment is pronounced immediately upon the return of the verdict, over the objection and exception of the defendant. In this case, however, the defendant entered no protest to the action of the court in pronouncing sentence upon him, and thereby will be held to have waived his rights thereunder. The motion for a new trial having been filed too late there is nothing for the consideration of this court but the record proper. Sec. 5285, R. S. 1909'; State v. Pritchett, 219 Mo. 704; State v. Fraser, 220 Mo. 34; State v. Thomas, 232 Mo. 216; State v. Standley, 232 Mo. 23; State v. Carson, 231 Mo. 1; State v. Currier, 225 Mo. 642.
   BROWN, J.

Defendant was convicted in the circuit court of Bollinger county on September 10, 1913, of the crime of breaking the custody of an officer, as denounced by section 4382, Revised Statutes 1909, and he appeals from a judgment fixing his punishment at imprisonment for six months in the county jail. This appeal was first granted to the Springfield Court of Appeals, but, as the offense of which defendant was convicted is a felony, the latter court transferred the appeal to this court. [State v. Underwood, 254 Mo. 469.]

What purports to be a complete transcript of the record proper and bill of exceptions was lodged with the clerk of this court on May 19, 1914. Said transcript was so incomplete that on June 30, 1914, our Attorney-G-eneral filed suggestions of diminution of record, which suggestions were by the court sustained, and the clerk of the circuit court commanded to make out, certify and transmit to this court a full and complete copy of all record entries in his office pertaining to this cause. On September 7, 1914, the clerk complied with our command.

The only material difference between the transcript thus obtained and the record entries found in the original transcript is that the one last filed shows that the jury which tried defendant was duly sworn; that defendant was accorded an allocution before sentence ; and that the motion for new trial was filed one day after the judgment of conviction had been entered. These important entries were omitted from the original transcript.

I. On January 5, 1915 (the day on which this cause was docketed for trial in this court), the defendant, without challenging the correctness of the transcript sent up under our first order, filed his motion suggesting diminution of record and praying that the clerk of the trial court be commanded to send up a full, true and complete transcript of all record entries in this cause.

This motion was overruled, and properly so, because we had already done, at the instance of the Attorney-General, the very thing the defendant requested us to do.

Without committing ourselves to the proposition that we will not in any criminal case consider a motion filed in such untimely manner to amend or correct a record, we suggest that it would be far better practice, when a party suggests that any record, document or evidence has been omitted from the transcript, or any record entry, document or evidence has been incorrectly copied into such transcript, to file with his motion suggesting diminution true certified copies of such omitted or incorrectly copied entries, documents or evidence. When this is not done we will exercise our discretion to grant or overrule such motion as justice and the diligence of the movent may seem to demand.

II. The fact that the amended abstract of the record proper prepared and filed by the clerk of the circuit court at our command, shows that the motion for new trial was not filed until one day after sentence and judgment was pronounced upon defendant precludes us from reviewing any matter of error found in the bill of exceptions (if such there be). This precise point was before us and ruled upon in the recent cases of State v. Thomas, 232 Mo. 216, and State v. Briscoe, 237 Mo. 154.

When the record, as in this case, shows that the sentence was pronounced and judgment entered before the motion for new trial was filed it will be presumed, in the absence of a contrary showing, that the trial court was informed by the defendant that he did not desire to be heard on a motion for new trial.

If defendant had moved the trial court to grant him time to file a motion for new trial before entering judgment, and that request had been denied, then such ruling denying time to file a motion for new trial as well as the evidence introduced upon such motion, would became a proper matter of exception. [State v. Carson, 231 Mo. 1.]

It may sometimes occur that clerks will write up judgments against defendants before any judgment has been actually pronounced by the court; in all such cases it becomes the duty of defendant to move the court to vacate or expunge from its records such premature or unauthorized judgment before filing his motion for new trial. Otherwise, the judgment must stand as an absolute bar to the consideration of errors found only in the bill of exceptions.

III. Among the files in this cause is a certified copy of the judgment of the circuit court and the order-granting the appeal. This document need not have been mentioned, except to emphasize the fact that it serves no useful purpose in a criminal cause. In civil causes the filing of a certified copy of the judgment and order granting an appeal, together with the payment of the docket fee, gives the appeal its place on onr docket, but, as the statute automatically advances all criminal cases, it is useless to file in this court a fragment or fraction of the record proper. If a review only of the record proper is desired a transcript of the entire record proper should he filed. The case of State v. Short, 250 Mo. 331, in so far as it conflicts with the views expressed in this opinion, is overruled.

IY. We find on file in this cause an information which is legally sufficient to charge the defendant with the offense of which he was convicted. The amended transcript of the record entries filed under our former order shows that defendant waived formal arraignment, and that he was found guilty and his punishment fixed at six months in jail hy a jury duly impaneled and sworn; that he was accorded an allocution, after which sentence was duly .pronounced in accordance with the verdict of the jury. The record proper contains no reversible error and the judgment is affirmed.

Fans, P. J., and Walker, J., concur.