State v. Timeus

The defendant was prosecuted in the Court of Criminal Correction of the city of St. Louis, upon an information charging a misdemeanor, to-wit, a violation of section 7801, Revised Statutes 1909, concerning employment agencies. A jury being waived, he was tried by the court, found guilty, and his punishment assessed a,t a fine of two hundred dollars.

After motions for new trial and in arrest were filed and overruled, judgment was pronounced, in ac*310cordan.ce with, the finding, and an appeal was granted to this court. For some cause which does not appear in the transcript, the appeal was certified to the St. Louis Court of Appeals, which court, on the ground that a constitutional question appeared in the record, transferred the cause to this court.

The Attorney-General has filed a motion in this court, praying that the cause be transferred to the St. Louis Court of Appeals, for the following reasons:

“1. Because defendant was tried and convicted on a charge of failure to secure employment for another, and to return money paid him in pursuance of his agreement' to procure such employment, which offense is a misdemeanor.

£ £ 2. Because at no stage of the trial did appellant raise and preserve any constitutional question in such a manner as to confer upon this court appellate jurisdiction.

££3'. Because this court has no jurisdiction to hear and determine the appeal.”

It is disclosed by the record that the constitutionality of the statute upon which the information was based, was not raised by demurrer, motion to quash, or in any other manner, during the progress of the trial. In the motion for a new -trial, for the first time, and again, in the motion'in arrest, the defendant assailed the said statute as violative of several'provisions of both the Constitution of this State, and the Constitution of the United States.

If the constitutional questions' sought to be presented in the motions for a new trial and in arrest, are properly raised in the record .before us, then this court has jurisdiction of this, appeal; otherwise, it has not.

It is shown by the record proper in this case that on the 10th day of October, 1908, the court pronounced judgment against the defendant, and ££ further ordered that the said defendant be allowed thirty days to file *311'MU of exceptions herein.” The next and final recital in the record proper, is of the filing of the bill of exceptions on the 13th day of November, 1908. No order granting an extension of time within wdiich to file the bill, nor agreement of counsel filed with the clerk for that purpose, appears anywhere in the entire record. There is a statement in the purported bill of exceptions that, ‘ ‘ thereupon the court gave the defendant sixty days in which to file his bill of exceptions.”

The proper place for the order of the court granting the defendant time for the filing of his bill of exceptions, is in the record proper, and not in the bill of exceptions, “and where the recitation in such record is contradicted by that in the bill of exceptions, the latter must give way.” [Jones v. Lime Company, 128 Mo. App. l. c. 348.]

Under this state of the record, it is apparent that the bill of exceptions was filed out of time, and that only1 the record proper is before this court. [State v. Walker, 194 Mo. 367; State v. Bragg, 207 Mo. 587; State v. Cutberth, 203 Mo. 579; State v. Seaton, 106 Mo. 198; State v. Brannon, 212 Mo. 173.]

As the constitutional questions were not raised in the record proper and only the record proper is in judgment it follows that the ease does not involve the construction of the Constitution of the United States, or of this State and, therefore, that this court has no jurisdiction of this appeal.

For the foregoing reasons, the motion to transfer is sustained, and it is ordered that this cause be transferred to the St. Louis Court of Appeals.