Convicted of bigamy, defendant has appealed from the judgment rendered upon *Page 278 the verdict of the jury fixing his punishment at imprisonment in the penitentiary for two years.
Only the record proper is here for review, for the reason that the motion for new trial was not filed until three days after sentence was entered upon the verdict. Section 4079, Revised Statutes 1919, requires such motion to be filed before judgment. [See State v. Sparks, 263 Mo. 609; State v. Pritchett,219 Mo. 696; State v. Baird, 248 S.W. 596; State v. Keyger, 253 S.W. 363.]
The information, under which defendant was duly arraigned and tried, was drawn under Section 3510, Revised Statutes 1919, which denounces the act of a single person in knowingly marrying another person having a husband or wife living. Said section supplements Section 3506, as limited by Section 3507.
The information follows the language of the statute and is in practically the language approved in State v. Gonce, 79 Mo. 600, and State v. Jenkins, 139 Mo. 535, and is sufficient.
The verdict is in the following form:
"We, the Jury, find the Defendant, John Caulder guilty as charged in the information, and we do assess his punishment at two years in the Penitentiary.
"JAS.W. BLACK, Foreman."
It is apparent that the verdict is in proper form.
However, it does not appear from the record proper that defendant was granted allocution as required by Section 4057, Revised Statutes 1919. In the record entry showing the trial, verdict and judgment and following the verdict which is set outin haec verbae, these words appear: "It is therefore sentenced, ordered and adjudged by the court that the said defendant, John Caulder, having been found guilty as aforesaid, be confined in the State Penitentiary for a period of two years, and that the sheriff of this county shall, without delay, remove and safely convey," etc. If defendant was informed of the verdict of the jury and asked whether he had any legal cause to show why judgment should not be pronounced against him, it does not appear in the record. *Page 279
In State v. Dunnegan, 258 Mo. l.c. 376, and State v. Kile, 231 Mo. l.c. 62, this court held that allocution is mandatory in felony cases before judgment can be legally entered. The fact that Section 4058 provides that the requirement of allocution in misdemeanor cases and in cases where defendant has been heard upon a motion for a new trial or in arrest, shall be deemed directory, conclusively evidences the legislative intent that allocution is mandatory before sentence in felony cases, unless the defendant has theretofore been heard upon motions for new trial or in arrest. [State v. Kile, supra, l.c. 63; State v. Taylor, No. 24801, this day decided.]
What is now Section 4057, Revised Statutes 1919, first appeared as a new section in the Revised Statutes of 1879, as Section 1939, and has been carried without amendment through all subsequent revisions. It was held in State v. Ball, 27 Mo. 324, that the omission of a showing of allocution in the record was unimportant since that case was not a capital one. That decision was rendered in 1858 and prior to the enactment of Section 1939, Revised Statutes 1879, and such case is no authority upon the construction to be given the present statute.
In State v. Nagel, 136 Mo. 45, Judge SHERWOOD affirmed a felony case where the record did not show allocution, but in that case the motions for new trial and in arrest had been passed upon before defendant was sentenced and the judgment was saved by the provisions of what is now Section 4058. The same situation existed in State v. Kanupka, 247 Mo. l.c. 713. In the case at bar sentence was pronounced three days before the motion for new trial was filed.
There can be no question under our statute that allocution was necessary in the case at bar. The only remaining question to be considered is whether such allocution will be presumed where the record is silent upon the subject and it does not otherwise properly appear that the requirement was not complied with. On this subject this court has plainly spoken in State v. Dunnegan, supra, *Page 280 and in State v. Kile, supra. In the Kile Case, Judge KENNISH said: "The failure of the record to show a proper allocution is an error occurring after the verdict, and does not affect the regularity of the proceedings before judgment, and therefore does not entitle the defendant to a reversal of the judgment and a new trial."
In State v. Dunnegan, supra, WILLIAMS, C., said: "Turning to a consideration of the record proper, we find the information and verdict are in proper form and that all proper steps were observed except that it nowhere appears in the record thatallocution was extended the defendant. Respondent insists that `although the record fails to show that allocution was extended the defendant, yet, the presumption obtains that the court below discharged its full duty in this respect.' We are unable to agree with the contention of the Attorney-General in this regard. The very purpose of the record proper is to show what transactions occurred in the case in the trial court (other than matters of exception which must be preserved by bill of exceptions)." (Italics ours.)
The failure of the trial court to inform defendant of the verdict of the jury and to ask him whether he had any legal cause to show why judgment should not be pronounced against him requires us to reverse the judgment entered against him and to remand the case to the trial court with directions to have defendant brought before said court for allocution and judgment, as provided by Section 4057, Revised Statutes 1919.
It is so ordered. White, J., concurs; Walker, J., dissents in separate opinion.