Opinion
No. 42039.
February 12, 1951.
APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY, WOODSON OLDHAM, J.
No appearance for appellant.
J. E. Taylor, Atty. Gen., Jack Fleischaker, Asst. Atty. Gen., for respondent.
Defendant has appealed from a conviction and sentence of five years imprisonment in the penitentiary under Sec. 4694, R.S. 1939, Sec. 561.450, R.S. 1949, on a charge of having obtained property by means of a check drawn, with the intent to cheat and defraud, on a bank in which the defendant-drawer knew he had no funds.
No bill of exceptions has been filed and our review of the cause on appeal is necessarily limited to the record proper. State v. Birkner, Mo.Sup.(En Banc), 229 S.W.2d 674; State v. Darby, Mo.Sup., 165 S.W.2d 419; State v. Day, Mo.Sup., 124 S.W.2d 1189.
The record as certified by the clerk of the circuit court of Jasper county, consists of a copy of the transcript from the magistrate's court and a copy of the information and all record entries showing the various steps taken in the circuit court. These entries show the appointment of counsel for defendant over defendant's objections, the formal arraignment of defendant and his plea of not guilty, the record of a hearing on defendant's application for a subpoena for 72 witnesses and the court's finding "that said witnesses are immaterial and have no knowledge of this case," the empaneling of the jury, the trial of the cause, the verdict of the jury, the order granting to defendant 30 days within which to file a motion for a new trial, the filing of the motion for a new trial, the hearing and overruling thereof, the granting of allocation, the sentence and judgment of the court, the defendant's affidavit for an appeal, the order granting the appeal, the filing of an affidavit and application to appeal as a poor person and the hearing and denial thereof.
The instruction given by the court to the jury and the motion for a new trial as prepared, signed and filed by the defendant are also copied in the clerk's transcript. These instructions do not constitute a part of the record proper and could only be made a part of the record by being incorporated in a properly authenticated bill of exceptions allowed and filed in the trial court. State v. Highley, Mo.Sup., 102 S.W.2d 563, 564; State v. Harrison, 359 Mo. 793, 223 S.W.2d 476, 478. The same is true of the motion for a new trial. State v. Jordan, 353 Mo. 405, 182 S.W.2d 563; Baker v. State, Mo.Sup., 171 S.W.2d 655. The transcript on file here shows no bill of exceptions and we may not, therefore, notice either the instructions or the motion for a new trial, even though all have been copied in the transcript. State v. Williams, 141 Mo. 264, 42 S.W. 937.
Appellant has filed a brief in this court, but he has assigned no errors with reference to the record proper. The information is in proper form and charges an offense under Sec. 4694, supra. It substantially follows the form used and held sufficient in the case of State v. Griggs, Mo. Sup., 236 S.W.2d 588, not yet reported in the State Reports.
The verdict is responsive to the charge set forth in the information. It is a general verdict finding the defendant guilty as charged in the information and fixing his punishment at five years in the state penitentiary. The verdict is sufficient. State v. Akers, Mo.Sup., 242 S.W. 660; State v. Millering, Mo.Sup., 111 S.W.2d 121; State v. Fly, 358 Mo. 838, 217 S.W.2d 385.
The transcript shows that the defendant was formally inquired of by the court as to whether there was any reason why sentence should not be pronounced and, failing to show such cause, he was thereafter duly and properly sentenced. The record shows compliance with the statutes. Secs. 4100, 4101, R.S. 1939, R.S. 1949, §§ 546.550, 546.560.
In the brief filed by appellant, he complains that the trial court questioned his right to subpoena 71 witnesses from Jackson county and one from Macon county; and that the court held a hearing on the legitimacy of his request and refused subpoenas on the ground that the witnesses were not material. The information charged that the check was drawn on the National Bank of Tulsa, Tulsa, Oklahoma; and that it was issued and the property obtained in Jasper County. The evidence on the hearing as to subpoenas for these witnesses was not preserved. The record filed in this court shows no objections to the court's action, or that any exceptions were saved. No bill of exceptions has been filed and the matter is not before us for review.
Appellant further complains that he subpoenaed one Russell Mallot "as a defense witness" and that, thereafter, the court allowed the "witness to assume the position of prosecutor throughout the hearing of the trial." Appellant says that Russell Mallot was "Assistant District Attorney"; and that, he being called to the stand as a witness for defendant, the court was left "without a full complement as no prosecutor was substituted during the time Mr. Mallot was acting as defense witness." The matters mentioned do not appear from the record on file. The assignment does not prove the facts upon which it purported to be based and there is nothing before us to sustain the complaint in any way, or to show any objection or exception thereto. The matters mentioned are not before this court for review.
Appellant further complains that, over his objection and before he had appeared on the stand as a witness in his own behalf, it was shown in evidence that he "had served time in prison previous to the present trial." No such fact or objection appears in the record presented on this appeal. If it happened, the matter should have been preserved in a bill of exceptions. Absent a bill of exceptions the matter is not before us.
Appellant further contends that, in the trial of the cause, witnesses for the state and the defense were questioned concerning alleged statements purporting to have been made "by defendant and state witnesses during a preliminary hearing," but that no record of such hearing was presented to substantiate the testimony of the witnesses. Appellant also complains that "throughout the course of the prosecuting attorney's closing argument Assistant District Attorney Russell Mallot did continually refer to the fact that the defendant did not take the witness stand in his own defense." The matters complained of do not appear from the record proper and they are not before us for review.
Appellant further complains that after the jury retired for the purpose of arriving at a verdict, "the judge left the bench and entered the jury room where he remained with the jury about ten minutes." No such fact appears from the record which appellant has caused to be filed in this court for a review of his case and the matter is not before us.
Appellant further contends that "although defendant insisted upon trying his own case without the assistance of counsel, an attorney was appointed by the court to be on hand throughout the trial for the purpose of `advising' the defendant and to see that his rights were recognized"; and that the "appointed `advisor' for the defense left the courtroom while the jury was in the jury room and he was not present at the time that the jury announced its verdict, and he did not return at any time after." Again the matter complained of does not appear from the record presented for review.
Appellant finally complains that the attorney appointed to represent him was not present to file a motion to disqualify the jury when the judge visited the jury room; and that, thereafter, although defendant desired to file a motion for a new trial, the attorney did not appear and defendant "was compelled to file his written motion without the help of counsel." These facts do not appear from the record proper. The complaint does not prove itself. We may not consider matters not properly presented for review. Only the record proper is before us and no errors appear therein.
The judgment should be affirmed. It is so ordered.
All concur.