Opinion
December 12, 1927.
1. APPEAL: Transcript: Proceedings before Justice. A copy of the proceedings before a justice of the peace prior to the filing of the information in the circuit court, if their regularity is not questioned, is improperly included in the transcript of the proceedings of the trial certified to this court, and the State should not be taxed with the cost thereof.
2. ASSIGNMENTS: General. Assignments in the motion for a new trial in a criminal case, charging error in the admission of improper testimony, the exclusion of competent evidence, the discovery of new evidence, the giving of instructions, numbered or lettered, and improper argument to the jury, and stating conclusions as broad as the expanse of the trial, but specifying in no particular wherein there was error, do not comply with the statute (Sec. 4079, Laws 1925, p. 198), and present nothing for review on appeal. They do not serve the primary purpose of informing the trial court of the errors of which complaint is made, nor the secondary purpose of so preserving them as to merit the consideration of the appellate court. But, in this case, even if the motion had complied with the statute, the record reveals no error authorizing a reversal.
Corpus Juris-Cyc. References: Costs, 15 C.J., Section 849, p. 338, n. 9. Criminal Law, 17 C.J., Section 3349, p. 87, n. 43, 44.
Appeal from Cooper Circuit Court. — Hon. Henry J. Westhues, Judge.
AFFIRMED.
North T. Gentry, Attorney-General, and L. Cunningham, Assistant Attorney-General, for respondent.
(1) The information follows approved forms and charges the felonious selling of one pint of hootch, moonshine and corn whiskey. Sec. 21, Laws 1923, p. 242; State v. Wright, 289 S.W. 646, 291 S.W. 1078; State v. Griffith, 311 Mo. 630; State v. Moore, 279 S.W. 133. (2) The evidence is clear and convincing that Elliott Morris on the 28th day of March, 1926, bought two one-half pints of corn whiskey from the defendant in Cooper County, Missouri, and paid him two dollars therefor. (3) The instructions of the court correctly declare the law. The defendant asked none. (4) The verdict is sufficient in form and substance. It is not necessary for the name of the defendant to be inserted. State v. Jackson, 283 Mo. 18; State v. Kembugler, 267 S.W. 801. It is not necessary for the words "imprisonment" or "term" to be inserted in the verdict in fixing the punishment. State v. Wright, 289 S.W. 646, 291 S.W. 1078; State v. Kembugler, 267 S.W. 801; State v. Coleman, 262 S.W. 424; State v. Stuart, 289 S.W. 824. (5) The fourth assignment in the motion is that the verdict is unreasonable and founded upon prejudice. The record of the trial shows that the defendant was fairly tried. The jury had the right to weigh the evidence and to believe that on the part of the State. (6) There is no showing in the bill of exceptions of any objections made to any remarks of the prosecuting attorney. Statements in the motion for new trial do not prove themselves. State v. Harmon, 296 S.W. 391; State v. Ellis, 290 Mo. 219.
The appellant was charged by information in the Circuit Court of Cooper County with having sold intoxicating liquor, designated as hootch, moonshine and corn whiskey. Upon a trial to a jury he was convicted and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.
The appellant sold two boys of tender years two half-pint bottles of corn whiskey, from the drinking of which they became drunk. The appellant denied the sale. His wife and another woman testified that at the time the witnesses for the prosecution stated they bought the liquor from appellant at his home he was away and did not return until later; that no boys came to appellant's house that day. Other witnesses testified that they saw the appellant elsewhere than at his home when the sale was shown by the State to have been made. Evidence of the good character of the appellant was introduced. In contravention of this testimony the State proved that the appellant's character was bad. The jury gave no credence, either to the appellant's denial, or to his proof of an alibi or of his good character. No brief has been filed for the appellant.
This transcript is burdened with a copy of the proceedings before a justice of the peace prior to the filing of the information. The regularity of these proceedings is Transcript. not questioned; they are improperly included in the transcript and the State should not be taxed with the costs of their transcription. The regularity of the proceedings, as disclosed by the record proper, not being questioned, we are limited in our review to such matters of exception as are stressed in the motion for a new trial, provided such matters have been so preserved as to challenge our attention.
I. The motion for a new trial consists of four paragraphs; its character may be most readily determined by its own Assignments. words, which are as follows:
"1. Because the court permitted improper and irrelevant testimony and because facts were given to the jury not authorized by the court and because the court excluded competent and legal testimony offered on the part of the defendant, and because there has been newly discovered circumstances and evidence that would be of great benefit to the defendant in another trial.
"2. Because the jury was permitted to separate in an improper manner and they did not give fair and due consideration of the case.
"3. Because the court in the giving of the instructions numbered A, B, C, D, E, F, G, and H, has misdirected the jury in material matters of law.
"4. Because the verdict is unreasonable and founded upon prejudice, and the same is contrary to the law or evidence introduced in this case. And because of improper remarks made in argument of prosecuting attorney."
It may be said generally that neither one of these paragraphs conforms to the terms of the statute (Sec. 4079, R.S. 1919, as amended, Laws 1925) which requires that the motion shall set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor. These paragraphs state only general conclusions which are as broad as the expanse of the trial. Thus framed they do not serve the primary purpose of informing the trial court of the errors complained of; nor the secondary purpose, of so preserving them as to merit their consideration by the appellate court. Counsel for the respondent, out of the abundance of caution, has briefed the various contentions made in the motion. We have examined this review and, if the motion had conformed to the statute, no error in the proceedings is disclosed which would authorize a reversal. If, therefore, the case be determined upon its merits, the appellant has no ground of complaint as he will have suffered no injury by the failure of his counsel to properly present his case on appeal.
Under any consideration which may be given to this case the right to a reversal does not exist and the judgment of the trial court is affirmed. All concur.