State v. Revely

Burgess, J.

At the May term, 1897, of the circuit court of the city of St. Louis the defendant was convicted of murder in the second degree under an indictment theretofore preferred against him by a grand jury of said city, and his punishment fixed at ten years imprisonment in the penitentiary, for having stabbed to death with a knife one Michael Green at said city on the eighth day of February, 1896. Defendant appealed.

At the time of the homicide deceased was a waiter at Peckington’s saloon in the city of St. Louis. Sometime between 8 and 9 o’clock on Saturday evening, February 8, 1896, defendant went into the saloon and up to the lunch counter and got a lunch, when deceased made some remark to him which seemed to anger him. He then left the saloon, but in ten to fifteen minutes returned again. Deceased was then waiting on some people at a table. Defendant said to him,- “Now you scoundrel here I am again, if you want anything out of me, I am here for it.” Just after this remark they came together as if scuffing, and were separated by some of those present. Green then stepped back, when .defendant followed him up and *662 stabbed him in the heart with a knife, from the effects of which he died a few days thereafter.

The defense interposed was that the stabbing was done in self-defense, which there was some evidence to sustain. The court instructed for murder in the second degree, manslaughter in the fourth degree, and self-defense. Defendant is not represented in this court.

The motion for a new trial is not made part of, or copied into the bill of exceptions, but is copied in the record proper, and it is now insisted by counsel for the 'State, that as it was not made part of the record by bill of exceptions or by direction to the clerk in the bill of exceptions to copy the same, that it is no part of the record, and can not be considered by this court.

By section 2304, Revised Statutes 1889, it is provided that it shall not be necessary, for the review of the action of any lower court by the Supreme Court or courts of appeal on appeal or writ of error that the motion for a new trial, in arrest of judgment, or instructions filed in the lower court, shall be copied or set forth in the bill of exceptions filed in the lower court,'provided the bill of exceptions so filed contains a direction to the clerk to- copy the same, and the same are so copied into the record sent up to the appellate court. The only way that the motion for a new trial could have been made part of the record was by copying it into the bill of exceptions, or into the record proper by the clerk in pursuance of directions to that •effect. The only reference to the motion for a new trial in the bill of exceptions is in the following words: ‘ ‘Defendant filed his motion for a new trial in words and figures as set out on page number 19,” and this was no ■compliance with the statute. All proceedings not part of the record proper can only be preserved and made *663 so by bill of exception, and the motion for a new trial was not part of the record proper.'

In State v. Griffin, 98 Mo. 672 , it was held that where a motion for a new trial is not set forth in the bill of exceptions, and there is no direction to the clerk to copy the same, no notice will be taken of it by the appellate court and only the record proper will be considered. The same rule is announced in State v. Wray, 124 Mo. 542 .

We can therefore only examine the record proper, and this we find free from error.

The judgment is affirmed.

Gantt, P. J., and Sherwood, J., concur.