Opinion
No. 27942.
June 20, 1950.
APPEAL FROM THE ST. LOUIS COURT OF CRIMINAL CORRECTION, LOUIS COMERFORD, J.
No appearance, for appellant.
William C. Lochmoeller, Prosecuting Attorney, St. Louis, Jasper R. Vettori, Associate Prosecuting Attorney, St. Louis, for respondent.
Appellant Dewey Johnson was convicted in the St. Louis Court of Criminal Correction on a charge of criminal libel. His punishment was assessed at a fine of $250.00. We shall refer to him hereinafter as defendant.
The information charging the offense against defendant was filed on April 12, 1949. It alleged that the defendant "in the City of St. Louis, on the 22nd day of March, 1949, contriving and intending maliciously to defame one Louise Debrow, to provoke her to wrath, expose her to public hatred, contempt and ridicule, and deprive her of the benefits of public confidence and social intercourse, did then and there maliciously write, print, publish, circulate and cause to be written, printed, published and circulated in a certain newspaper called, 'World's Tattler,' a false, malicious and defamatory libel of and concerning the said Louise Debrow, to-wit:
"Debrow's Hair Treatment
"If your kinky hair patrons fail to pay you like you failed to pay your advertising bills, maybe you would miss a meal.
"Notice to those who are slightly behind in their bills, such as Mrs. Debrow of the Hair Oil concern who hasn't made any effort to pay her bills, which leaves our company in a loss, but I find the bosses rather gentle in being polite with their advertisers. So, I hope that this slides past them.
contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State."
The transcript of the record filed in this court on appeal does not contain any bill of exceptions. Hence, we do not have before us the evidence upon which the defendant was convicted. Furthermore, defendant has not filed any brief in this court. Notwithstanding these failures of defendant to perfect his appeal in this court, it is our duty, this being a criminal case, to review the record proper which is before us and render judgment thereon. Section 4150 R.S.Mo. 1949, Mo.R.S.A. Section 4150; State v. Lund, 233 Mo.App. 774, 127 S.W.2d 97; State v. Carr, 216 Mo.App. 432, 270 S.W. 121.
An examination of the record shows that defendant was duly arraigned and entered a plea of not guilty to the charge; that he was tried by the court, after which he was adjudged guilty and his punishment fixed as heretofore stated. Thereafter defendant filed an affidavit for appeal, which was duly allowed on June 17, 1949.
The information in this case was based upon Sections 4758 and 4759 R.S.Mo. 1939, Mo.R.S.A. Sections 4758 and 4759. Section 4758 provides as follows: "A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends."
Section 4759 provides as follows: "Every person who shall make or compose, dictate or procure the same to be done, or shall willfully publish or circulate any such libel or libels specified in the preceding section, or shall in any way knowingly and willfully aid or assist in making, publishing or circulating the same, shall be deemed guilty of a misdemeanor."
A mere reading of the allegations in the information and a comparison thereof with the language of the statutes above set forth show that the information was in proper form and charged an offense within the language of the statutes. See State v. Armstrong, 106 Mo. 395, 16 S.W. 604, 13 L.R.A. 419, 27 Am.St.Rep. 361.
The record shows that the punishment assessed was within the provisions of Section 4853 R.S.Mo. 1939, Mo.R.S.A. Section 4853, which provides that whenever any offense is declared by statute to be a misdemeanor and no punishment is prescribed by that or any other statute "the offender shall be punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment."
The statute, Section 4759, supra, classifies the offense defined in Section 4758, supra, as a misdemeanor, but fixes no punishment for said offense. The punishment, therefore, is governed by Section 4853, supra.
The transcript filed in this court contains what purports to be a motion for a new trial, but it cannot be considered on this appeal because it has not been embodied in a bill of exceptions properly authenticated and filed. The law has long been established by the decisions of our Supreme Court that a motion for a new trial cannot prove itself but must be incorporated and preserved in a bill of exceptions properly authenticated and filed in order to be considered by a reviewing court. Baker v. State, Mo.Sup., 171 S.W.2d 655; State v. Kroeger, Mo.Sup., 37 S.W.2d 450; State v. Hembree, Mo.Sup., 37 S.W.2d 448.
Our examination of the record discloses no error and the judgment of the trial court should be affirmed. It is so ordered.
ANDERSON, P. J. and HUGHES, J., concur.