State v. Weinegard

SHERWOOD, P. J. — Ninety-nine years was the term in the penitentiary awarded defendant, who, being tried for murder in the first degree (for that he shot William A. Simpson to death with a revolver), was convicted of murder in the second degree. Not being satisfied with what he asserts was an erroneous trial, consummated by such an erroneous result, defendant appeals to this court. [491] There is no error in the record proper; but there are two fatal defects which will prevent our examination into the points presented in the supposed bill of exceptions, which are these: In the first place, the transcript has been sent here in two sections; one of them presenting what supposably is intended for the bill of exceptions, without any preliminary heading or authentication; the other section containing an undated statement that a bill of exceptions was filed in the cause as above entitled; but such a statement is obviously and absolutely insufficient to identify or authenticate the bill in question, and so we have repeatedly ruled. [Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; State v. May, 168 Mo. 122.] In the second place, even if the so-called bill of exceptions had been properly identified and authenticated, still the fact remains that when the motion for a new trial was denied, there was no exception saved to the ruling of the court in this regard; at least the bill shows nothing of the kind; and we have repeatedly held that unless such an exception be saved, no examination can occur into the alleged trial errors. [State v. Gilmore, 110 Mo. 1, and subseq. cas.] And although the record proper contains a recital that defendant did except to the ruling of the court, still this would not answer, as the overruling of a motion is a matter purely of exception, and the bill of exceptions the only repository known to the law where matters of exception can be preserved. [Nichols v. Stevens, 123 Mo. loc. cit 119; Ryan v. Growney, 125 Mo. loc. cit. 480; State v Taylor, 134 Mo. loc. cit. 137; State v. Prather, 136 Mo. loc. 25; Critchfield v. Linville, 140 Mo. loc. cit. 192; State v. Wear, 145 Mo. loc. cit. 205, and subseq. cas.] Eor these reasons, we affirm the judgment All concur.