State v. McCray

74 Mo. 303

• Court: Supreme Court of Missouri
• Decided: October 15, 1881
• Status: Published

Opinion

I.

Sherwood, C. J.

There is no motion for new trial incorporated in the bill of exceptions; consequently, what occurred at the trial in the way of evidence adduced, or instructions given or refused, cannot be noticed by us. The rule in this regard is the same in criminal as in civil causes.

II.

There was no error in permitting the prosecuting attorney to file an amended affidavit to the information. He had already filed an affidavit at the time he filed the information, and the statute is express that when he has done so, he may file an amended affidavit. Meyer’s Supplt., p. 309, § 48.

III.

The information is well enough as to form'and sufficiently describes the offense.

IY.

We think it evident that the defendant did, in fact, waive a formal arraignment and enter a plea of not guilty. The record shows as much. In such circumstances, it was certainly competent for the court to make the proper entry nunc pro tunc. If, however, there had been no issue raised by the defendant pleading not guilty, of course an entry nunc pro tunc could not cure such a defect.. The only object of such an entry is, not to supply facts, but simply record evidence of that which actually occurred and should have been entered upon the record at the time. The authorities cited for the State do not aj)ply to a case like the present. Finding no error relating to the trial we can examine, and none in the record proper, we affirm the judgment.

All concur.