State v. Baty

66 S.W. 428, 166 Mo. 561, 1902 Mo. LEXIS 17

• Court: Supreme Court of Missouri
• Decided: February 4, 1902
• Status: Published

Opinion

SHEEWOOD, P. J.

The defendant, on a charge of murder in the first degree, was convicted of the second degree of that crime and his punishment assessed at ten years in the penitentiary.

The indictment charged that defendant killed George H. Hopkins, by giving him three mortal wounds on the head by striking, hitting and beating him on the head with a rock.

The evidence in this case can not be looked into by reason of the fact that the bill of exceptions has not been properly identified; nothing in the transcript to show where it begins.

There is nothing in the record proper which precedes and identifies what may be supposed to be the bill. And in the concluding entry, after entitling the case, there is this recital made in vacation: “And now comes defendant by his attorney, A. K. Monroe, and files his bill of exceptions as per rule of court.”

Hnder the ruling in Reno v. Fitz Jarrell, 163 Mo. 411 (in which is given the usual and proper formula for identifying the bill of exceptions), the bill here has not been properly identified.

As to the record proper, no error has been discovered in that.

In reference to the record entries pertaining to this cause, the record shows that this cause was by agreement set for trial on the first Monday of October, 1900. This agreement was made on the twenty-fifth day of August, 1900, during the regular August term of the circuit court of Osage county. The defendant asserts that the record does not show the adjournment of the court from the month of August, or at any date, to meet on the first Monday of October. The record does show, however, that court met on the first day of October, 19.00, it being the seventh day of the regular August term, 1900, and being the first Monday in October; and that it so met pursuant to adjournment.

Every presumption will be indulged in favor of the correctness of the action of a court of general jurisdiction, and that it proceeds by right and not by wrong. [Huxley v. Harrold, 62 Mo. 516, and cas. cit.; State v. Harkins, 100 Mo. 666.]

If the record is silent about a matter necessary to confer jurisdiction, or more properly, to cause it to attach in the particular instance, the existence of such matter (nothing appearing of record to the contrary) will be presumed, and it will be presumed that where some regular and formal intermediate entry should have been made, which does not appear in the transcript, such absence was occasioned by the misprision of the clerk, and will not, therefore, operate a reversal of the judgment.

Eor these reasons, judgment affirmed.

All concur.