State v. Brown

This cause is here by appeal on the part of the defendant from a judgment of the circuit court of Jasper county, Missouri, convicting Mm of forgery, and assessing his punishment at five years’ imprisonment in the State penitentiary.

• On the 24th day of September, 1907, the prosecuting attorney of Jasper county filed in the office of the clerk of the circuit court of said county an information, duly verified, in two counts. The first count charged that the defendant at said county forged a check, purporting to have been made by a fictitious firm, on the Miners Bank of Joplin, for $14.85; the second count charged that defendant at said time and place feloniously did pass, sell, utter and publish as true said cheek. On the 12th day of October, 1907, defendant was duly arraigned and pleaded not guilty to said information. On the 7th day of November, 1907, and at the same term of said court, the prosecuting attorney, by leave of court, filed an amended in*377formation, duly verified, in two counts. The first count charged defendant with forging a check for $18.75, purporting to have been made by a fictitious firm, Paoma Mine, by Charles Strong, superintendent, on Miners Bank of Joplin, and in favor of John Smith or bearer, and the second count charged him with having passed, uttered and published such check as true. On the same day defendant filed his motion to quash said amended information, which was overruled. Defendant was- thereupon duly arraigned upon said amended information and pleaded not guilty thereto. The prosecuting attorney thereupon entered a nolle prosequi as to the second count of the information. The defendant was then put upon his trial, which resulted in the jury finding a verdict of guilty and assessing his punishment as heretofore indicated. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence were entered of record in accordance with the verdict returned, and from this judgment the defendant prosecuted this appeal.

At the very threshold of the .consideration of this cause we find that the record fails to disclose any authenticated bill of exceptions by which the objections and exceptions to the action of the court during the progress of the trial were preserved. There is an entire absence in this record of a bill of exceptions purporting to have been duly signed and sealed by the trial judge. While it does appear that there is a transcript on file in which matters of record propef and evidence are all mingled together, and at the close the clerk certifies that the defendant -comes in vacation and files herein his bill of exceptions in this cause, which is duly signed and sealed by the Hon. Hugh Dabbs, Judge, there is absolutely nothing which shows that a bill of exceptions is embraced within this record, and this statement by the clerk is insufficient to au*378tborize this court to review anything except the record proper.

It has been uniformly ruled by this court that the bill of exceptions must be positively and plainly authenticated, and embraced within the record sent to this court. This ruling has been so frequently made that there is no necessity for citing cases in which the rule has been announced.

The first count of the amended information upon which the judgment in this case is predicated, is in proper form, charging every essential element of the offense, and informations in' similar form have been expressly approved by this court. [State v. Yerger, 86 Mo. 33.]

The jury were duly empaneled and sworn to try the case; the verdict and judgment are in accord with the provisions of the statute, and the record seems to be regular in every particular; hence the judgment of the trial court should be affirmed, and it is so ordered.