State v. Crites

BURGESS, J.

On July 13, 1906, tbe prosecuting attorney of Buchanan county filed an information in the criminal court of said county charging tbe defendant and P. R. Osborn, Lee Stanford and J. J. Hayes, alias Red Hayes, with unlawfully, feloniously and burglariously breaking into and entering a railroad car of Tbe St. Joseph and Grand Island Railway Company, and stealing therefrom seven tubs of butter, tbe property of said company, of the value of ninety-five dollars and fifty-five cents. At tbe March term, 1907, of said court, a severance having been granted, tbe defendant, upon trial bad, was convicted of grand larceny, and bis punishment assessed at four years in the penitentiary. He appeals.

Tbe motion for a new trial is not incorporated in tbe bill of exceptions filed in this case, nor does tbe bill show that an exception was saved to tbe action of tbe court in overruling tbe motion. It is true that, after tbe bill is signed by tbe judge- of tbe court, there is copied what purports to be tbe motion for a. new trial, but it nowhere appears that an exception was taken and saved to tbe action of tbe court in overruling said motion. In order that this court may pass-upon matters of exception occurring during tbe trial of a cause, it is absolutely necessary that they be pre *93 served in the motion for' a new trial, and that the action of the court in overruling the motion be excepted to, and the exception saved at the time, and preserved by bill of exceptions. Our conclusion is, as we think the authorities all show, there is nothing before us for review except the record proper. [State v. Libby, 203 Mo. 596 ; State v. Irwin, 171 Mo. 558 ; State v. Baker, 206 Mo. 695 ; State v. Gordon, 117 Mo. 387 ; State v. Price, 186 Mo. 140 .]

Since the case was submitted the defendant has filed a certified copy of the judgment in the case, affidavit for appeal, order allowing appeal to the Supreme Court, and order extending time for filing bill of exceptions. But these are literal copies of what appears in the original transcript of the record filed in this cause, and in no way cure the defects in the bill of exceptions heretofore pointed out.

The information is in form often approved by this court, and duly sworn to. Finding no reversible error in the record, the judgment is affirmed.

All concur.