State v. Williams

47 S.W. 891, 147 Mo. 14, 1898 Mo. LEXIS 124

• Court: Supreme Court of Missouri
• Decided: November 7, 1898
• Status: Published

Opinion

SHERWOOD, J.

— A steer stolen in Pulaski county forms the basis of the present prosecution; and because defendant was convicted of such theft he comes up to this court and makes inquiry whether he was legally convicted.

1. It is firmly established by our rulings that matter excepted to at one term of court must be cidiunc ei ibidem saved by a bill of exceptions filed at such term, and can not at a subsequent term be “warmed over” by being inserted in a bill of exceptions filed at such subsequent term. [State v. Taylor, 134 Mo. 109; State v. Ware, 69 Mo. 332, and other cases.] Eor this cause it is that exceptions taken at the March term, 1897, and not preserved at such term as aforesaid, could not at the September adjourned term, 1897, have a place in the bill of exceptions filed at that term, and should not have been inserted therein.

2. The cross-examination of James Shelton (indicted with defendant and afterwards severed from him) was in accord with prior decisions of this court. [State v. Avery, 113 Mo. 475, and subsequent cases.]

3. As to the remarks of Murphy made in his closing argument to the jury, it is enough to say that the fact that they appear in the motion is no evidence that they appear in the bill of exceptions, nor do they so appear in such bill, the only place where such matters can be preserved. They can not be preserved in affidavits, nor in motion for new trial. [State v. Levy, 126 Mo. 554; State v. Clark, page 20 of this volume.]

4. It does not matter that the steer was first stolen in Texas county and afterwards taken into Pulaski county, inasmuch as each transportation of stolen property from one county to another is a fresh theft. The venue of the theft was, therefore, properly laid in Pulaski county. [State v. Smith, 66 Mo. 61; State v. Ware, 62 Mo. 597, etc., etc.] This was the rule at common law, and our statute on the subject is but declaratory of that rule.

5. There was ample evidence on which to convict defendant, and there is no ground of objection on that score.

6. The judgment in this cause was rendered in October, 1897. At the same term defendant took an appeal. At the March term, 1898, but before the bill of exceptions was filed, defendant filed a motion to set aside the order granting an appeal and to grant him a new trial. This motion was based on the affidavit of Satterfield, that he, a witness against defendant, had committed perjury at the trial. After the term at which the judgment was-rendered, it was beyond the power of that court to set that judgment aside.

But even if Satterfield had committed perjury, still the testimony of Laughlin would have remained. But whether this was so, or not so, the court had no power to grant the motion.

Judgment affirmed.

All concur.