State v. Buck

32 S.W. 975, 130 Mo. 480, 1895 Mo. LEXIS 406

• Court: Supreme Court of Missouri
• Decided: November 19, 1895
• Status: Published

Opinion

Shebwood, J.

Convicted of perjury, and his punishment assessed at two years in the penitentiary, defendant- appeals to this court. The indictment follows approved forms, and is sufficient.

The evidence, however, though referred to in the bill of exceptions as contained in index sheets marked A and B herewith filed and attached and made a part of this bill of exceptions, constitutes no part of the bill.

Section 2304, Revised Statutes, 1889, provides that: “But it shall not be necessary, for the review of .the action of any lower court on appeal or writ of error, that the motion for a new trial, in arrest of judgment, or instructions filed with 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.”

Under the old regime, such motions and instructions had to be incorporated in the .bill of exceptions, but this statute has worked a change in this regard as therein specified; but that is the extent of the change; the evidence has, as formerly, to be incorporated into the bill, and can not be made part thereof, except by incorporation therein; reference thereto in the bill will not do. State v. Griffin, 98 Mo. loc. cit. 675.

As the evidence, for this reason, can not be noticed, the same is true respecting the instructions, because it would be impossible properly to pass upon them, unless it were known what the evidence is. It results from these premises that the judgment should be affirmed.

All concur.