Opinion
No. 42018.
October 9, 1950. Rehearing Denied November 13, 1950.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS CITY, MICHAEL J. SCOTT, J.
Emanuel Williams and I. Joel Wilson, St. Louis, for appellants.
J. E. Taylor, Atty. Gen., Robert L. Hyder, Asst. Atty. Gen., for respondent.
Nelson I. Loyd and Thomas Owens prosecute this appeal from a judgment and sentence of twenty years' imprisonment for robbery in the first degree by means of a dangerous and deadly weapon. §§ 4450, 4453, R.S. 1939, Laws 1943, p. 518, § 4453, Mo.R.S.A.
The evidence for the State established that on August 22, 1947, in the City of St. Louis, Missouri, Owens held a revolver on one Henry Smith while Loyd searched Smith's pockets and took $79 therefrom. The sufficiency of the State's evidence is not questioned.
We have only the record proper for review as the motion for new trial appearing of record was filed too late.
Motions for new trial in criminal cases are to be filed "within four days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for a period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion." § 4125, R.S. 1939, Mo.R.S.A. This requirement is mandatory.
The verdict finding defendants guilty was returned on March 12, 1948. The only motion for new trial of record was filed September 16, 1948. It was not timely filed; and, under the authorities, preserves no matter of exception for review, it being considered a nullity. State v. Brown, 339 Mo. 1014, 98 S.W.2d 777 [2, 3, 5, 6]; State v. Mosley, Mo.Sup, 119 S.W.2d 297 [1], and State v. Baird, 297 Mo. 219, 226, 248 S.W. 596, 598[3] citing authorities; State v. Porter, Mo.Sup., 81 S.W.2d 316, 317[1, 2]; State v. Maddox, 153 Mo. 471, 473, 55 S.W. 72, 73. Supplemental motions for new trial or amendments of motions for new trial filed after the lapse of said statutory time are likewise ineffective. State v. Simenson, 263 Mo. 264, 269, 172 S.W. 601, 602[5]; State v. Lackmann, Mo.Sup., 12 S.W.2d 424, 426 [9]; State v. Harris, 336 Mo. 1134, 1139 [2], 82 S.W.2d 877, 880[2]; State v. Jones, 237 Mo.App. 714, 721, 164 S.W.2d 85, 89[10-12]. The appellants are responsible for the record upon appeal in all criminal cases, except capital cases. State v. Kelsay, Mo.Sup., 18 S.W.2d 491[4]; State v. Barrett, Mo.Sup., 44 S.W.2d 76, 78; State v. Ross, 334 Mo. 870, 69 S.W.2d 293, 295; State v. Crader, Mo.Sup., 225 S.W.2d 353.
Our examination of the record proper discloses no reversible error. Defendants, however, say the verdict of the jury is fatally defective in that it fails to assess the punishment of each defendant separately as provided by § 4091, R.S. 1939, Mo. R.S.A. The verdict reads: "We, the jury in the above entitled cause find both defendants guilty of robbery in the first degree by means of a dangerous and deadly weapon, and assess the punishment of each defendant at twenty (20) years in the penitentiary."
The record discloses that two and only two defendants were charged with and tried for committing the offense. The verdict found "both" defendants guilty. This was a finding that one defendant and also the other defendant was guilty; that is, the two defendants, without exception of either, were guilty. Webster's "New International Dictionary." It is a sufficient verdict of guilty as to each of the two defendants. State v. Turpin, 332 Mo. 1012, 1018[8, 9], 61 S.W.2d 945, 948 [13, 14]; State v. Henderson, Mo.Sup., 284 S.W. 799, 800[2]; State v. Gordon, 153 Mo. 576, 577, 55 S.W. 76; State v. Person, 234 Mo. 262, 267, 136 S.W. 296, 298[4]. The assessment of the punishment against "each defendant" was also sufficient. Consult State v. Henderson, State v. Gordon, State v. Person, State v. Turpin, all supra.
Furthermore, the record discloses that each defendant was accorded allocution separately, and that a separate judgment and sentence was entered against each defendant individually. As to the effect of this procedure upon a verdict not assessing the punishment of each defendant separately, consult State v. Carroll (Jocoy), 288 Mo. 392, 408(V), 232 S.W. 699, 703 [9, 10]; State v. Thornhill, 174 Mo. 364, 371, 372, 74 S.W. 832, 834; State v. Bliss, Mo.Sup., 99 S.W.2d 71, 72, and, on first appeal, Mo.Sup., 80 S.W.2d 162, 164.
It follows that the judgment should be and is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.