State v. Leahy

BURGESS, J. Upon an information filed by the assistant circuit attorney of the city of St. Louis on the 2nd day of December, 1908, the defendant, in the circuit court of said city, was convicted of assault with intent to kill, without.malice, and his punishment assessed at two years in the penitentiary. Timely motions for new trial and in arrest of judgment filed by the defendant were overruled by the court, whereupon defendant appealed. It appears from the record that on April 2, 1909, the defendant was granted an appeal to this court, and thirty days allowed him within which to prepare and file his bill of exceptions. The time allowed for this purpose expired on the 2nd day of May, 1909', which it appears was Sunday, and notwithstanding that the time allowed expired on said day, the court, on the following day, Monday, May 3, 1909', made an order further extending the time for filing the bill of exceptions fifteen days, which fifteen days, as will be found by computation, expired on the 18th day of May, 1909. The record does not show that any further order was made until the 4th day of June, 1909, when the court made the following order: “It is this day ordered by the court, for good cause shown by the attorney for the defendant, that [523] the following order be entered nunc pro tunc as of and for the 18th day of May, 1909, the said date to conform with the facts and proceedings in this cause, to-wit: “It is this day ordered by the court that the time heretofore granted defendant to file his bill of exceptions herein on or before the 18th day of May, 1909, be again extended up to and including the 5th day of June, 1909, and that when so filed the same to have the same force and effect as if filed on the 18th day of May, 1909.” By virtue of this order, the defendant filed his bill of exceptions on the 4th day of June, 1909. These orders of the court, of May 3d and June 4, 1909, were without legal sanction. The time allowed by the prior order of the court for the filing of defendant’s bill of exceptions had expired on May 2, 1909, and there being no further legal extension granted by the court on or before that day, it could not be done afterwards; hence, the bill of exceptions, filed on the fourth day of June, after the time previously allowed by the court had expired, was permitted to be filed without authority of law, and cannot now be considered by this court. [State v. Simmons, 124 Mo. 443; State v. Eaton, 191 Mo. 151; State v. Apperson, 115 Mo. 470; State v. Clark, 119 Mo. 426; State v. Stanley, 221 Mo. 547.] We have nevertheless examined the testimony, and find that there is no merit in defendant’s contention that the court erred in admitting certain testimony and in excluding certain other testimony. The defendant had a fair trial, and the verdict of the jury was amply supported by the evidence. We have also, as in duty bound, examined the record proper, and have discovered no error therein. The judgment is affirmed. All concur.