Opinion
No. 42,391.
June 11, 1951.
APPEAL FROM CIRCUIT COURT OF GENEVIEVE COUNTY, NORWIN D. HOUSER, J.
Clarence Mahurin, pro se.
J. E. Taylor, Atty. Gen., Richard H. Voss, Asst. Atty. Gen., for the State.
Clarence Mahurin was convicted of the murder in the first degree of Lottie Fisk Mahurin and sentenced to life imprisonment in conformity with the verdict of the jury. Upon petition, we issued our writ of error to review the proceedings. We designate the plaintiff in error, for convenience, as defendant.
This is not a capital case or a case wherein an order staying the proceedings was entered; and the duty devolved upon the defendant to see that a proper transcript was transmitted to and filed in this court. R.S. 1949, §§ 547.110, 547.120, 547.130; State v. Shepard, 334 Mo. 423, 67 S.W.2d 91, 92(I); State v. Barrett, Mo.Sup., 44 S.W.2d 76, 78[6]; State v. Crader, Mo. Sup., 225 S.W.2d 353; State v. Ball, Mo.App., 171 S.W.2d 787, 789[2-4] reviewing cases.
The case is here on the record proper as we have no bill of exceptions before us. The record proper discloses that defendant asked for time to procure the services of counsel, having the means to employ counsel, and also that the court offered to appoint counsel for defendant, which offer the defendant rejected. Defendant was present with his counsel throughout the trial. Prior to the entry of judgment defendant and his counsel appeared in open court and asked leave to withdraw defendant's motion for new trial and requested that sentence be passed upon him. The court, after fully explaining to defendant his legal rights, granted leave to withdraw the motion for new trial, and passed sentence upon defendant and entered judgment in accordance with the verdict of the jury. No bill of exceptions was ever filed in the trial court. In the circumstances we have only the record proper before us for review as writs of error bring up only the record proper in the absence of a bill of exceptions. Matters of exception mentioned in the brief filed by defendant cannot be reached for consideration. See State v. Dimmick, 331 Mo. 240, 53 S.W.2d 262, 263(I); State v. Kelsay, Mo.Sup., 18 S.W.2d 491(I); and other cases supra.
The record proper shows that defendant was indicted by a grand jury of St. Francois county, Missouri, where the offense was committed, the indictment being duly endorsed as a true bill by the foreman and filed in the circuit court of said county. The indictment was in two counts, each related to the same transaction and charged the same offense in different form to meet the exigencies of the trial. Each count of the indictment is sufficient in form and substance to charge murder in the first degree. R.S. 1949, § 559.010; State v. Hargraves, 188 Mo. 337, 87 S.W. 491, 494(1); State v. Courtney, 356 Mo. 531, 202 S.W.2d 72, 73[4]; State v. Beard, 334 Mo. 909, 68 S.W.2d 698, 700(I).
The verdict found "defendant guilty of murder in the first degree," without specifying the count of the indictment, and assessed the punishment. This is sufficient under indictments charging the same offense in different counts. State v. Testerman, 68 Mo. 408, 413[3]; State v. Blan, 69 Mo. 317, 318, 323; State v. O'Hearn, 237 Mo. 206, 140 S.W. 866; State v. Bray, Mo.Sup., 246 S.W. 921, 922[5]; State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 470[1].
Other matters need not be developed in detail. The record shows that defendant was arraigned and pleaded not guilty; that defendant filed an application for a change of venue from the county; that said application was sustained and a change of venue awarded to Ste. Genevieve county; that defendant was put upon trial on the indictment in the Circuit Court of Ste. Genevieve county; that he was present and represented by counsel at the trial; that the jury was impaneled and sworn and returned its verdict into court; that defendant was accorded allocation, and judgment was entered in accord with the verdict. These entries appear regular and are sufficient.
The judgment is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.