Village of Marble Hill v. Graves

ALLEN, J. This is a prosecution for an alleged violation of an ordinance of the village of Marble Hill, relating to the running at large of stock upon the .streets of the village. Defendant was tried before the chairman of the board of trustees of said village, found guilty of violating the ordinance, and fined $2.50. [591] Upon appeal to the circuit court and a trial there before a jury, defendant was again found guilty of an infraction of the ordinance and his punishment assessed at a fine of $2.25. The court entered a judgment against him for said sum, and he appeals. The point has been duly made by respondent that, in view of the condition of appellant’s abstract, there is nothing before this court for consideration except the record proper. We have carefully examined the abstract and find that respondent’s contention in this regard must be sustained. The abstract wholly fails to distinguish between matters which belong in the record proper and those which must be shown by the bill of exceptions. [See Stark v. Zehnder, 204 Mo. l. c. 448, 449, 102 S. W. 992; School District ex rel. v. Beggs, 147 Mo. App. 177, 126 S. W. 532.] Nothing, appears in the record proper, as distinguished from the bill of exceptions, showing the filing o.f a motion for a new trial, or that any bill of exceptions was ever filed in the case. It follows that there is nothing before us but the record proper, and the only question for our determination is whether the information will support the judgment. The original information filed was amended prior to going to the trial in the circuit court. It is contended that as originally filed it was fatally defective and insufficient, and that the amendment in the circuit court was improperly allowed. But in the state of the record before us this matter cannot be reviewed. Neither is the ordinance here. The amended information, being in the general form provided by section 9450, Revised Statutes 1909, would appear to be sufficient to support the judgment, if based upon a valid ordinance. Appellant urges that under section 9539, Revised Statutes 1909, this is a criminal appeal, citing King City v. Duncan, 238 Mo. 513, 142 S. W. 246, and that therefore, under section 5312, Revised Statutes 1909, [592] it is our duty to review the record before us. But we need say nothing as to the effect of- section 9539', supra. We have in fact carefully reviewed the typewritten transcript of the record. Not only does it fail to set out the ordinance upon which the prosecution is based, but “it commingles in an undistinguishable mass, matter of exception with record proper and matter contained in record entries, without any earmark to guide us in telling where one begins or the other leaves off. In that fix we cannot know what is in the bill of exceptions.” [See St. Louis v. Young, 248 Mo. 246, 154 S. W. 87, which was an appeal from a conviction for the violation of a city ordinance.] Such being the case, it is undoubtedly our duty to affirm the judgment. [St. Louis v. Young, supra, and cases cited.] Learned counsel for appellant are in error as to the effect of section 5312, supra. This section provides that no assignment of error, or joinder of error, shall be necessary upon an appeal or writ of error in a criminal case, but that the court shall proceed and render judgment upon the record before it. But this merely means that though no brief be filed, or assignments of error made, it is the duty of the appellate court nevertheless to examine so much of the record as is properly before it. The statute merely dispenses with the necessity of the filing of a brief, or of assignments of error, in criminal cases, as a prerequisite to such review. If matters of exception are not properly before the appellate court, the latter, in a criminal cause, reviews only the record proper, as in other cases. [See State v. George, 221 Mo. 519, 120 S. W. 35; State v. Parnell, 206 Mo. 723, 105 S. W. 742.] But where matters of exception have been duly incorporated into the record, the entire record will be reviewed (See State v. Tullar, 138 Mo. App. 387, 122 S. W. 313; State v. Donahue, 139 Mo. App. 639, 124 S. W. 42); and • if no assignments of error are before it, the appellate court will look to [593] the errors designated in the motion for a new tial. [See State v. Wilson, 223 Mo. l. c. 186, 122 S. W. 671.] It matters not therefore whether this appeal is to be regarded as one in a criminal case or otherwise. [See King City v. Duncan, supra.] In any event, it is clear that we can do nothing but affirm the judgment. [St. Louis v. Young, supra.] The judgment is accordingly affirmed. Reynolds, P. J., and Nortoni, J., concur.