State v. Delaney

Supreme Court of Missouri

State v. Delaney

157 S.W. 305, 250 Mo. 409, 1913 Mo. LEXIS 160

DecidedMay 20, 1913

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This text of 157 S.W. 305 (State v. Delaney) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Delaney, 157 S.W. 305, 250 Mo. 409, 1913 Mo. LEXIS 160 (Mo. 1913).

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Opinion

WILLIAMS, C.

Defendant was tried and convicted in the circuit court of Dunklin county upon an information charging him with the embezzlement of the [410]*410stun of $1100, belonging to one Baird, which said sum defendant is alleged to have received while acting as the .agent of said Baird. The punishment was assessed at two years in the penitentiary, and defendant perfected an appeal.

Motion for New Trial Not Set Out: Record Proper for Review. I. The bill of exceptions directs the circuit Clerk to copy the motion for a new trial, but the motion is neither copied in that part of the record designated as the bill of exceptions nor in that portion .of the transcript known as the record proper. There is therefore nothing before this court for review except the record proper.

No Showing That Jury Was Sworn. II. The record proper fails to show that the jury was sworn to try the .cause. It is well settled that the abstract of record proper must show that the jury was sworn to try the cause, and that a failure to so show will compel a reversal and remanding of the case. [State v. Mitchell, 199 Mo. 105; State v. McKinney, 221 Mo. 467; Sec. 5231, R. S. 1909.] A full discussion of the foregoing proposition will be found in the above cited cases, and therefore further discussion of the same in this opinion becomes unnecessary.

The judgment is reversed and the cause remanded for new trial.

Roy, C., concurs.

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

All the judges concur, except Faris, J., who does not sit.

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WILLIAMS, C.

Defendant was tried and convicted in the circuit court of Dunklin county upon an information charging him with the embezzlement of the [410]*410stun of $1100, belonging to one Baird, which said sum defendant is alleged to have received while acting as the .agent of said Baird. The punishment was assessed at two years in the penitentiary, and defendant perfected an appeal.

Motion for New Trial Not Set Out: Record Proper for Review. I. The bill of exceptions directs the circuit Clerk to copy the motion for a new trial, but the motion is neither copied in that part of the record designated as the bill of exceptions nor in that portion .of the transcript known as the record proper. There is therefore nothing before this court for review except the record proper.

No Showing That Jury Was Sworn. II. The record proper fails to show that the jury was sworn to try the .cause. It is well settled that the abstract of record proper must show that the jury was sworn to try the cause, and that a failure to so show will compel a reversal and remanding of the case. [State v. Mitchell, 199 Mo. 105; State v. McKinney, 221 Mo. 467; Sec. 5231, R. S. 1909.] A full discussion of the foregoing proposition will be found in the above cited cases, and therefore further discussion of the same in this opinion becomes unnecessary.

The judgment is reversed and the cause remanded for new trial.

Roy, C., concurs.

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

All the judges concur, except Faris, J., who does not sit.

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157 S.W. 305, 250 Mo. 409, 1913 Mo. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-delaney-mo-1913.

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