Opinion
No. 43000.
June 9, 1952.
APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY, MISSOURI, JAMES P. HAWKINS, J.
Frank Collier, E. C. Curtis, Springfield and Paul R. Brackley, Buffalo, for appellant.
J. E. Taylor, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.
Defendant was tried in the Circuit Court of Dallas County upon an information charging him with the crime of murder in the first degree, and the jury returned a verdict finding him guilty of murder in the second degree and fixing his punishment at imprisonment in the State Penitentiary for a term of twelve years.
The record presented shows that a motion for a new trial was filed, heard and overruled and that, thereupon, defendant applied for and was granted an appeal to this court.
No sentence was pronounced and no final judgment was entered by the trial court. Respondent concedes that the record does not affirmatively show allocution, sentence and judgment to comply with Sections 546.550, 546.560 and 546.570 RSMo 1949, V.A.M.S., and says that, "unless respondent can supply the apparent deficiency in the record", the cause should be remanded. No further action has been taken.
The appeal was, therefore, premature. No final judgment having been rendered against defendant, there was nothing from which to appeal. Sec. 547.070 RSMo 1949, V.A.M.S.; State v. Pruitt, Mo.Sup., 169 S.W.2d 399, 400; State v. Hewitt, Mo. Sup., 246 S.W. 546; State v. Clapper, 196 Mo. 42, 93 S.W. 384; Ex parte Hartley, 330 Mo. 338, 49 S.W.2d 119, 120. And see Sections 546.550, 546.560, 546.570 and 546.590 RSMo 1949, V.A.M.S. We have no jurisdiction to review the record on appeal in the absence of a final judgment in the trial court. State v. Skaggs, Mo.Sup., 248 S.W.2d 635, not yet reported in the State Reports; State v. Vinson, 337 Mo. 1023, 87 S.W.2d 637, 640; State v. White, 339 Mo. 1019; 99 S.W.2d 72, 75; Ex parte Hartley, supra.
The submission of this cause on appeal should be set aside and the cause remanded to the trial court with directions to cause defendant to be brought before it, to grant allocation, pronounce sentence and enter judgment against the defendant in accordance with the verdict of the jury, reserving to defendant the right to a review of the cause by this court upon its merits, provided all proper procedural steps required by law and the rules of this court are taken. State v. George, 207 Mo. 16, 105 S.W. 598; State v. Clapper, supra; State v. Smith, 207 Mo. 24, 105 S.W. 598; State v. Vinson, supra; State v. White, supra; State v. Pruitt, supra.
It is so ordered.
All concur.