WHITE, J.
The record in this case contains copy of an information filed in the Circuit Court of Boone County charging the defendant, Harry Taylor, with grand larceny, under Section 3316, Revised Statutes 1919, in that he stole one pocket knife of the value of $1.51, from the dwelling house of John McGavock. The record shows also that on October 25, 1922, a jury returned a verdict finding him guilty, as charged, and assessing his punishment at imprisonment in the county jail for one year.
The record then shows that a motion for new trial and a motion in arrest were filed and overruled
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sentence was pronounced.
I. We cannot consider errors occurring in the progress of the trial because no motion for new trial was filed before judgment, and therefore no bill of exceptions is fiefore us for consideration. We have only the record proper.
II. Appellant claims that he was not allowed his allocution. The State confesses error in this respect, and asks that the case be remanded so that the defendant may be brought before the court and asked why sentence should not be pronounced. For the sake of regularity only we are asked to permit this empty formality which would not benefit the defendant except, perhapis, to delay for a short time the beginning of his sentence.
The policy of our law contemplates that any defendant convicted of - crime shall have a right to have his case reviewed on appeal, a right of which he may be deprived only by his own neglect. In this case it appears from the record that the defendant was not allowed time before judgment to file a motion for new trial or in arrest, and that he was not asked whether he could show any legal cause why judgment should not be pronounced against him. We will notice below the state of the record. Sections of the statute bearing upon that are as follows:
“Section 4079.
Motion for New
Trial.—The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if. not, then before the end of the term, and shall be heard and determined in the same manner as motions for new trials in civil cases.
‘ ‘ Section 4057.
Prisoner May Be Heard Before Sen
tence.—When the defendant appears for judgment, he
must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him; and if no sufficient cause be shown against it, the court must render the proper judgment.
“Section 4058.
Preceding Section, When Directory.
—If the defendant has been heard on a motion for a new trial, or in arrest of judgment, and in all cases of misdemeanor, the requirements of the next preceding section shall be deemed directory, and the omission to comply with' it shall not invalidate the judgment or sentence of the court.”
These sections are quoted in their logical, not in their numerical, order.
In his motion for new trial the defendant could not complain of the want of allocution, because necessarily the motion must be filed before the court is obliged to call upon a defendant to say why sentence should not be pronounced. The error, therefore, cannot appear in the bill of exceptions and must appear in the record proper.
Several times this court has held that the record must affirmatively show the allocution in order to satisfy the requirements of the statute. [State v. Dunnegan, 258 Mo. 373; State v. Kile, 231 Mo. 59; State v. Kanupka, 247 Mo. l. c. 713; State v. Nagel, 136 Mo. l. c. 51.] That is the general rule. [8 R. C. L. p. 236; 16 C. J. 1295.]
The statutes above quoted indicate that necessity. Section 4058 provides that, if the defendant has been heard on motion for new trial, the requirements in regard to allocution shall be deemed directory, and the omission will not invalidate the judgment. Thus plainly it is implied that if that formality is omitted, in the absence of a motion for new trial, it would invalidate the judgment.
It is argued that the court will be presumed to have performed the duty of asking the defendant whether he had any legal cause to show why the judgment should not be pronounced against him. True, the court is pre
sumed to have done its duty. For instance, the court is presumed to have found every fact necessary to be proven in order to render judgment. In the absence of any record upon the subject, the court, by pronouncing- judgment, will be presumed to have found the facts necessary to confer jurisdiction of the cause. The court, however, is not presumed to have performed every act necessary to be performed in the regular progress of a case. The record must show that the jury was sworn. [State v. Mitchell, 199 Mo. 105; State v. Hurst, 123 Mo App. l. c. 42.] It must show such formalities as the filing of motion for new trial, the overruling of the same, and that the verdict was rendered.
III. The record here affirmatively shows that the defendant was not given time to file his motion for new trial, nor granted allocution. After reciting the plea of not guilty, the impaneling of the jury, and the reception of evidence and arguments, October 25, 1923, the record proceeds as follows:
“And after considering of their verdict,
now come the
jury, and in open court, on their oaths do say: ‘We, the jury, find the defendant guilty, as charged, and assess his punishment at imprisonment in the county jail for a term of one year. Signed: — W. J. Carter, Foreman.’ And thereupon the jury are discharged.
It is
therefore ordered and adjudged by the court that the said defendant be confined in the county jail of Boone County, for the period of one year, in accordance with the verdict of the jury, or until he shall be otherwise discharged by due course of law. It is further ordered and adjudged by the court that the State have and recover of and from the defendant all the costs of this cause, and that execution issue therefor.”
This recital shows a continuous sequence from the returning of the verdict to the pronouncement of sentence.
“Now
come the jury,” and present their verdict.
“It is
therefore ordered, ’ ’ etc. The sentence is the immediate consequence of the. verdict, not in consequnce of his hav
ing no cause to show why it should not be pronounced. It is all expressed in one entry upon the record, as if made at the same time. The usual method of entering a later order on the same day is to say: “And after-wards on the same day, ’ ’ etc." That method was followed by the clerk in this case, for following the above record occurs this: “And afterwards, to-wit, on Wednesday, Oct. 25, 1923” (the same date as that on which the verdict was returned) . . . “the following proceedings were had.” Then follows the recital of the filing of the motion for new trial. This use of the word £
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WHITE, J.
The record in this case contains copy of an information filed in the Circuit Court of Boone County charging the defendant, Harry Taylor, with grand larceny, under Section 3316, Revised Statutes 1919, in that he stole one pocket knife of the value of $1.51, from the dwelling house of John McGavock. The record shows also that on October 25, 1922, a jury returned a verdict finding him guilty, as charged, and assessing his punishment at imprisonment in the county jail for one year.
The record then shows that a motion for new trial and a motion in arrest were filed and overruled
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sentence was pronounced.
I. We cannot consider errors occurring in the progress of the trial because no motion for new trial was filed before judgment, and therefore no bill of exceptions is fiefore us for consideration. We have only the record proper.
II. Appellant claims that he was not allowed his allocution. The State confesses error in this respect, and asks that the case be remanded so that the defendant may be brought before the court and asked why sentence should not be pronounced. For the sake of regularity only we are asked to permit this empty formality which would not benefit the defendant except, perhapis, to delay for a short time the beginning of his sentence.
The policy of our law contemplates that any defendant convicted of - crime shall have a right to have his case reviewed on appeal, a right of which he may be deprived only by his own neglect. In this case it appears from the record that the defendant was not allowed time before judgment to file a motion for new trial or in arrest, and that he was not asked whether he could show any legal cause why judgment should not be pronounced against him. We will notice below the state of the record. Sections of the statute bearing upon that are as follows:
“Section 4079.
Motion for New
Trial.—The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if. not, then before the end of the term, and shall be heard and determined in the same manner as motions for new trials in civil cases.
‘ ‘ Section 4057.
Prisoner May Be Heard Before Sen
tence.—When the defendant appears for judgment, he
must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him; and if no sufficient cause be shown against it, the court must render the proper judgment.
“Section 4058.
Preceding Section, When Directory.
—If the defendant has been heard on a motion for a new trial, or in arrest of judgment, and in all cases of misdemeanor, the requirements of the next preceding section shall be deemed directory, and the omission to comply with' it shall not invalidate the judgment or sentence of the court.”
These sections are quoted in their logical, not in their numerical, order.
In his motion for new trial the defendant could not complain of the want of allocution, because necessarily the motion must be filed before the court is obliged to call upon a defendant to say why sentence should not be pronounced. The error, therefore, cannot appear in the bill of exceptions and must appear in the record proper.
Several times this court has held that the record must affirmatively show the allocution in order to satisfy the requirements of the statute. [State v. Dunnegan, 258 Mo. 373; State v. Kile, 231 Mo. 59; State v. Kanupka, 247 Mo. l. c. 713; State v. Nagel, 136 Mo. l. c. 51.] That is the general rule. [8 R. C. L. p. 236; 16 C. J. 1295.]
The statutes above quoted indicate that necessity. Section 4058 provides that, if the defendant has been heard on motion for new trial, the requirements in regard to allocution shall be deemed directory, and the omission will not invalidate the judgment. Thus plainly it is implied that if that formality is omitted, in the absence of a motion for new trial, it would invalidate the judgment.
It is argued that the court will be presumed to have performed the duty of asking the defendant whether he had any legal cause to show why the judgment should not be pronounced against him. True, the court is pre
sumed to have done its duty. For instance, the court is presumed to have found every fact necessary to be proven in order to render judgment. In the absence of any record upon the subject, the court, by pronouncing- judgment, will be presumed to have found the facts necessary to confer jurisdiction of the cause. The court, however, is not presumed to have performed every act necessary to be performed in the regular progress of a case. The record must show that the jury was sworn. [State v. Mitchell, 199 Mo. 105; State v. Hurst, 123 Mo App. l. c. 42.] It must show such formalities as the filing of motion for new trial, the overruling of the same, and that the verdict was rendered.
III. The record here affirmatively shows that the defendant was not given time to file his motion for new trial, nor granted allocution. After reciting the plea of not guilty, the impaneling of the jury, and the reception of evidence and arguments, October 25, 1923, the record proceeds as follows:
“And after considering of their verdict,
now come the
jury, and in open court, on their oaths do say: ‘We, the jury, find the defendant guilty, as charged, and assess his punishment at imprisonment in the county jail for a term of one year. Signed: — W. J. Carter, Foreman.’ And thereupon the jury are discharged.
It is
therefore ordered and adjudged by the court that the said defendant be confined in the county jail of Boone County, for the period of one year, in accordance with the verdict of the jury, or until he shall be otherwise discharged by due course of law. It is further ordered and adjudged by the court that the State have and recover of and from the defendant all the costs of this cause, and that execution issue therefor.”
This recital shows a continuous sequence from the returning of the verdict to the pronouncement of sentence.
“Now
come the jury,” and present their verdict.
“It is
therefore ordered, ’ ’ etc. The sentence is the immediate consequence of the. verdict, not in consequnce of his hav
ing no cause to show why it should not be pronounced. It is all expressed in one entry upon the record, as if made at the same time. The usual method of entering a later order on the same day is to say: “And after-wards on the same day, ’ ’ etc." That method was followed by the clerk in this case, for following the above record occurs this: “And afterwards, to-wit, on Wednesday, Oct. 25, 1923” (the same date as that on which the verdict was returned) . . . “the following proceedings were had.” Then follows the recital of the filing of the motion for new trial. This use of the word £
‘
afterwards ’ ’ in regard to an occurrence on the same day, shows that the pronouncement of judgment was not afterwards, bui at the same time the verdict was returned.
It was held by this court, opinion by Faris, J., in case of State v. Guerringer, 265 Mo. 408, that where the defendant, found guilty by. the jury fifteen minutes before the expiration of the term, failed to file his motion for new trial before judgment was rendered in pursuance of the verdict, the record showed on its face that defendant did not have time to file his motion for new trial before the end of the term. The opinion cites Section 4079, Revised Statutes 1919, which requires the motion to be in writing, sets forth the grounds for demanding a new trial, and held that as a matter of course defendant’s counsel would not have time in fifteen minutes to prepare and file such a motion. There was a ruling to the same effect in State v. Brown, 206 Mo. 501. In each of those cases the judgment was reversed and the cause remanded for another trial because the defendant in each case, without any fault of his own, had been deprived of his statutory right to have his cause reviewed on appeal. Those cases have been cited with approval several times. [State ex rel. v. Anderson, 269 Mo. 381, l. c. 385; State ex rel. v. Ellison, 267 Mo. 321, l. c. 332.] In the present case the defendant, apparently, did not have any appreciable time to prepare and file his motion. Here, then, comes in the importance of allocution. If the judge had brought the defendant before him, and asked
Mm if he had any legal reason to present why sentence should not be pronounced, he could very properly have said: “I have a sufficient reason: I have not had time to prepare and file my motion for new trial which the statute allows me, and therefore I demand the sentence be deferred until the motion can be prepared and filed.”
Where a defendant is asked if he has any legal cause to show why judgment should not be pronounced, his failure to file a'motion or ask leave to do so is held to be waiver. [State v. Pritchett, 219 Mo. 696.] This court, in the case of State v. Carson, 231 Mo. l. c. 9, said this:
“In this case the record discloses that when the court came to pass upon the case, he announced his reasons for his verdict, and immediately, without giving counsel for defendant an opportunity to file a motion for a new trial, rendered his judgment, to which action of the court the defendant by his counsel at the time excepted and gave notice that he would file his motion for a new trial within the statutory time, and within four days did in fact file his motion for a new trial. ”
The court then held that defendant had not waived his right to file his motion; that the motion being filed within four days was properly filed, although after judgment was pronounced; the cáse was decided upon its merits as shown by the. record preserved in its bill of exceptions.
The opinion was by G-antt, J., in which Burgess and Kennish, JJ., concurred.
In the Guerringer Case, supra, a motion for new trial was filed after the term, and the court held it could not be considered, but since the defendant was not given time in which to file his motion, a new trial was ordered. From those cases and others cited above we summarize the law as follows:
A defendant convicted of a felony is by the statute allowed four days to file his motion for new trial, or during the term if less than four days remain. The court must allow time for him to file said motion after the verdict and before the pronouncement of judgment. If he is allowed allocution and fails to ask time in which
to file Ms motion lie may be deemed to have waived it. If when granted allocution he demands time in which to file his motion, the court then must grant him a reasonable time, four days if necessary, unless the term should sooner end.
The defendant has done everything that he could do to avail himself of his statutory rights. He was convicted of a trifling offense, and suffered the imposition of a very heavy sentence for what under other circumstances would have been a mere misdemeanor.
The courts should not allow criminals to escape through technical error where it can be avoided. The duty is equally incumbent upon the court to protect a defendant from being railroaded to the penitentiary upon a technical error.
In this case the record shows affirmatively that the defendant was not given time to file his motion for new trial, or granted his allocution. The judgment then pronounced was irregular and should be set aside. When the case is remanded the trial court, ,after allowing allocution, may pronounce judgment, from which judgment the defendant of course may appeal if he be so advised. We see no reason why his motion already filed in proper time and before the entry of the judgment appealed from would not save for review all exceptions preserved in the bill of exceptions.
Accordingly, the judgment is reversed and the cause remanded.
David E. Blcuir, P. J.,
concurs;
Walker, J.,
dissents in separate opinion.