Opinion
No. 42822.
February 11, 1952.
Gerald L. Seegers, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
In the circuit court of the city of St. Louis the appellant was convicted of burglary in the second degree and his punishment was assessed at four years' imprisonment in the state penitentiary.
The only assignment of error in appellant's brief is that the trial court erred in permitting the assistant circuit attorney to state in his argument to the jury that the appellant did not testify in the case.
The state contends that this assignment of error is not before us because no authenticated or properly verified motion for new trial has been filed in this court.
Appellant has filed in this court a portion of the assistant circuit attorney's argument to the jury. On the back of this transcript appears the following:
"Have read and approved this transcript as a true copy of my closing argument in this case.
"Thos. E. Dowling "Asst. Circ. Atty."
There is attached to the front part of this document a motion for new trial filed in the trial court, but it is to be noted there is nothing to show that it is properly authenticated or even filed.
Our rule 1.34 provides:
"(b) Bills of exceptions in criminal cases shall not be required but it shall be sufficient if a transcript on appeal is settled, prepared, served and filed in the manner provided for civil cases, in Section 135, Civil Code of 1943, as amended, (RSMo 512.110 [V.A.M.S.]) and Rule 1.04 of this Court. The Attorney General may direct that the transcript shall include all of the evidence in any felony case. * * *
"(e) Nothing herein provided shall invalidate appeals heretofore or hereafter taken in accordance with the provisions of Article 15, Chapter 30, Revised Statutes of 1939 (RSMo 547.070 to 547.350 [V.A.M.S.]) but this rule shall be construed as authorizing alternative methods of appellate procedure. Motions for new trial in criminal cases must comply with the requirements of Article 14, Chapter 30, Revised Statutes 1939. (RSMo 547.010 to 547.060, 546.900 [V.A.M.S.])"
The motion for new trial is not properly authenticated or verified either in a bill of exceptions or in the manner prescribed by the civil code. Motions for new trial do not prove themselves. The motion for new trial found in the papers filed in this court is not part of the record proper and cannot be considered. State v. Banning, Mo.Sup., 147 S.W.2d 457; Baker v. State, Mo.Sup., 171 S.W.2d 655; State v. Jordan, 353 Mo. 405, 182 S.W.2d 563. Therefore, the only thing before us is the record proper.
The amended information first charges that the appellant was convicted in the circuit court of the city of St. Louis of larceny of motor vehicle equipment on April 8, 1943 and was sentenced to imprisonment in the penitentiary for a term of two years, that he was imprisoned in the penitentiary and was duly discharged therefrom upon lawful compliance with that sentence; and that appellant was convicted of burglary in the second degree in the circuit court of the city of St. Louis on May 6, 1946 and was duly sentenced to imprisonment in the penitentiary for a term of three years, and that he was discharged from the penitentiary upon compliance with that sentence.
Then the amended information states that on March 1, 1950 the appellant entered "into a certain restaurant and building of Samuel Goldberg and Jerome Hofstein, co-partners, doing business as Dunnies Restaurant, situated at No. 801 N. 12th St., there situate and being in which divers goods, wares, merchandise and other valuable things were then and there kept and deposited, feloniously and burglariously, forcibly did break and enter, with felonious intent then and there, and thereby feloniously and burglariously to steal, take and carry away the goods, wares, merchandise, other valuable things, and personal property in the said restaurant and building, then and there kept and deposited; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State."
This information follows RSMo 1949, section 556.280, V.A.M.S., in charging the appellant to be an habitual criminal. It also follows the language of RS Mo 1949, section 560.070, V.A.M.S., which defines burglary in the second degree. The amended information on which appellant was tried is sufficient as to both form and substance. State v. Miller, Mo.Sup., 202 S.W.2d 887.
The verdict returned by the jury is as follows:
"We, the Jury in the above entitled cause, find the defendant guilty of Burglary Second Degree and assess punishment at Four (4) Years in the State Penitentiary.
"(Signed) Russell F. Hafer Foreman"
The verdict of the jury was in proper form to find appellant guilty of burglary in the second degree and sufficient to sustain the judgment, State v. Miller, supra; State v. Gentry, Mo.Sup., 55 S.W.2d 941, and is within the range of punishment of burglary in the second degree which is imprisonment in the penitentiary for not less than two years and not more than ten years, under RSMo 1949, section 560.095, V.A.M.S.
The record shows that the appellant was formally arraigned, was granted allocution after verdict and was sentenced in accordance with the verdict of the jury.
Finding no error in the record, the judgment is affirmed.
All concur.