State v. Wolzenski

By information Ben Wolzenski, appellant, Gus Wolzenski and Vito Lodato were charged with grand larceny, the theft of a motor vehicle. Upon severance granted, appellant was found guilty and appeals from a judgment imposing a sentence of two years' imprisonment in the intermediate reformatory. Jake Goodman's 1930 Model A Ford coupe was stolen from in front of his home in Leadwood, St. Francois County, Missouri, about 1:30 A.M. June 26, 1934. Bert Whaley, a night watchman at Leadwood, saw a Ford roadster, occupied by three men, drive up to the coupe. These men had on "greasy" clothes — clothes like mechanics wear. One was some taller than the other two. The taller man, later positively identified by Whaley as Gus Wolzenski, got out of the roadster and into the coupe and drove the coupe away, following the roadster, traveling east. The identification was possible by reason of the street lights. Whaley reported the theft to Mr. Goodman, who telephoned the information to Trooper Koch, of the Highway Patrol, at Desloge. Trooper Koch immediately went out on Highway 61 and within a short distance (about a mile from his home and five and a half miles from Leadwood) stopped a Ford roadster, occupied by Gus Wolzenski. After questioning Wolzenski and taking the license number (Missouri 1934 No. 81-825) and the motor number of the roadster, he proceeded to Leadwood. He there interviewed Mr. Whaley. He then telephoned Trooper White at Kirkwood and started toward St. Louis on Highway 61. About 25 miles or so out of Leadwood, he stopped at the Ozark cafe, an all-night service station, and interviewed Paul Hedgcorth. Mr. Hedgcorth testified he was on duty at the Ozark cafe the night of June 25, 1934, and serviced a Ford coupe; that the coupe was occupied by two men, each having on greasy, dirty clothing, and one having a scar on his face — the defendant, Ben Wolzenski; and that he recognized the Ford coupe as one in which he had ridden a short time before with Mr. Goodman. Trooper Koch continued north on Highway 61 and, within a short distance, from Mr. Goodman's Ford coupe, parked on the right shoulder of the highway and abandoned. He then went to Festus where, about 3:00 A.M., he met Trooper White, who had the defendants under arrest. Trooper White testified that, after receiving the telephone call, he proceeded south toward Flat River on Highway 61; that he met a Ford roadster bearing 1934 Missouri license No. 81-825 on the Meramec bridge, turned around, and, after pursuing the roadster about a mile and a half or two miles, stopped it; that defendants occupied the car and *Page 1184 all had on greasy, dirty clothing; that he arrested the defendants and brought them to Festus, where he met Koch. [1] The trial clerk's certificate authenticates the proceedings as "a full, true, correct and complete transcript of the record" in the cause, "including the bill of exceptions, judgment and sentence." This is not a capital case, and the duty rested on appellant to see that the authenticated transcript contained the record entries and proceedings necessary for our review of assigned error. [Sec. 3757, R.S. 1929, Mo. Stat. Ann., p. 3295; State v. Ross, 334 Mo. 870, 874, 69 S.W.2d 293, 295(7); State v. Guinn (Mo.), 84 S.W.2d 627(2); State v. Little (Mo.), 248 S.W. 926(1).] The complete transcript of the record contains no showing of any ruling by the trial court on appellant's motion for new trial; and, consequently, no exception saved to any action of the trial court on said motion. The movant may abandon, withdraw, or waive the motion for new trial or consent to its being overruled. In State v. Jackson, 221 Mo. 478, 491, 120 S.W. 66, 68, this court, acting on the presumption a trial court has knowledge of its records, held the sentencing and rendition of judgment against a defendant during the pendency of his motion for new trial was in effect an overruling of the motion; and, the record disclosing that defendant's motion for new trial was formally overruled subsequent to the sentencing and entry of judgment, proceeded with its review on the merits. That case makes no mention of any exceptions saved and contains no discussion of any necessity for the saving of exceptions to the overruling of motions for new trial. While the preservation for appellate review of exceptions taken during the progress of a trial, not matters of record proper, was unknown to the ancient common law, exceptions are now allowed to reach matters dehors the record proper. [Spotts v. Spotts, 331 Mo. 917, 925(1, 2),55 S.W.2d 977, 980(1-4); State v. Dimmick, 331 Mo. 240, 243(I),53 S.W.2d 262, 263(1, 2); State v. Hardy, 339 Mo. 897,98 S.W.2d 593.] The purpose of appellate review now is the correction of all errors whether matters of record proper or of exception occurring during the progress of the trial; but as a condition precedent to the consideration of alleged error not appearing upon the face of the record proper not only must the issue be duly presented and saved during the progress of the trial but a proper opportunity must have been afforded the trial court to review and revise its own rulings (in criminal cases) by a motion for new trial [Secs. 3733, 3736, R.S. 1929, Mo. Stat. Ann., pp. 3272, 3283] or other appropriate motion. In State v. Harvey,105 Mo. 316, 317, 16 S.W. 886, we said: "The motion for new trial is no part of the record proper, and we cannot conceive how in the nature of things it has a place in a bill of exceptions, unless the overruling of it formed the basis of an exception, and such an exception was actually *Page 1185 taken and saved when the motion was overruled." [See, also, State v. Parnell, 206 Mo. 723, 725, 105 S.W. 742(1).] Accordingly, we have uniformly held in a long line of decisions that where the bill of exceptions fails to show an exception saved to the overruling of the motion for new trial, errors assigned therein are not preserved for review [The Harvey and Parnell cases, supra; State v. Arrowood (Mo.), 11 S.W.2d 1015; State v. Truedell (Mo.), 192 S.W. 404; and Missouri cases cited in 17 C.J., 76, sec. 3339, note 21, and (for civil cases) 3 C.J., p. 969, sec. 865, notes 46-49.] As it is necessary to save exceptions to adverse rulings on motions for new trial and that the bill of exceptions disclose the saving of such exceptions for appellate review of matters of exception, we, absent any showing of record, are not justified in indulging in the presumption that the rendition of judgment was in effect the overruling of the motion for new trial and, in addition, that exceptions were duly saved to the court's action in so ruling. Insofar as State v. Jackson, supra, conflicts herewith, it should be no longer followed. We, therefore, have only the record proper before us. Appellant makes no complaint as to matters of record proper and we find no error therein. Allocution was granted appellant in the presence of his counsel, and sentence was pronounced and judgment was entered. [2] We have considered, ex gratia, the assignments in the motion for new trial sufficiently alleging error for appellate review. They may be disposed of under two assignments. The court promptly sustained appellant's motion to strike certain evidence upon ascertaining sufficient facts on which to base an intelligent ruling. It should not be convicted of error in failing to strike a prior similar voluntary answer in the absence of a specific request to that effect. This, aside from other reasons. [3] The other assignment is that a witness admittedly gave false testimony. The situation differs from that in State v. Moberly, 121 Mo. 604, 611, 26 S.W. 364, 365(3), and other like cases, in that the witness' affidavit in the instant case (to the effect he had concluded he gave false testimony on certain matters) does not set forth what the witness' true knowledge of the facts involved was or his lack of knowledge of the facts he testified to at the trial. With this in view, and under all the circumstances of the case [see 16 C.J., p. 1188, sec. 2715, p. 1233, sec. 2746], considering the witness' testimony at the trial, its corroboration, in part, by the prosecuting witness, the portion of the witness' deposition offered in evidence by appellant contradictory of the witness' affidavit in some material matters, the fact that the record clearly indicates the witness did have some knowledge of the facts mentioned in the affidavit and the counter affidavits of the parties the witness stated in his affidavit had so unduly influenced him as to cause him to give false testimony, we are of opinion the *Page 1186 trial court would have been in the rightful exercise of its discretion had it overruled the assignment in question. The judgment is affirmed.