I do not concur in the majority opinion. The effect of the ruling therein is that the defendant was not given the right of an allocution or in the language of the statute (Sec. 4057, R.S. 1919), informed by the trial court of the verdict of the jury and asked whether he had any legal cause to show why judgment should not be pronounced against him, *Page 281 and that this omission will necessitate a remanding of the cause.
This was an offense not capital and the alleged error did not require the reversal of the judgment. [State v. Stark, 72 Mo. 37; State v. Ball, 27 Mo. 324.] Under such circumstances the query arises as to whether a more wholesome disposition of the case than is made in the majority opinion, so far as this alleged error is concerned, would not have been to entertain the presumption of regularity permissible in regard to the proceedings of courts acting within the scope of their jurisdiction, and to have held that the defendant was not denied the right in question. This conclusion is given implied approval in the Stark and Ball cases, supra, and is expressly approved in Bond v. State, 23 Ohio, 349. More especially should the presumption have been entertained when, as at bar, the failure of the record to show an allocution is not complained of by the defendant.
This record, however, presents more cogent reasons, than may be afforded by a presumption, why this case in the absence of other errors should have been affirmed, instead of being remanded that the statutory inquiry as to the defendant's knowledge of the verdict might be propounded to him.
Supplemental to the requirement of the informatory or allocution statute (Sec. 4057) there is another (Sec. 4058, R.S. 1919) which provides: "If the defendant has been heard on a motion for a new trial, or in arrest of judgment, and in all cases of misdemeanor, the requirements of the next preceding section shall be deemed directory, and the omission to comply with it shall not invalidate the judgment or sentence of the court." The record demonstrates that a motion for a new trial was heard and overruled by the trial court. This being true the preceding section as to the allocution becomes directory and should have been so held.
Before discussing the record it is pertinent, as explanatory of the reason for the enactment of Section 4057 and its application under the conditions defined in *Page 282 Section 4058, to state the origin of the custom of allocution. It originated when persons accused of crime were not allowed counsel and it was the duty of the court to see that no right to which the accused was entitled under the law had been denied him. Since counsel has been allowed, and other reforms in procedure in the protection of the rights of the accused during the progress of the trial have been inaugurated, there still remains in the statutes of this and other states a provision requiring an allocution before judgment. Legislatures evidently recognizing the archaic nature of these statutes have provided as in Section 4058 that the filing of the motion for a new trial shall be held to be notice to the accused of the verdict or, in other words, directory in its application.
It is held, however, in the majority opinion that a failure to file a motion for a new trial before judgment, as required by Section 4079, Revised Statutes 1919, will exclude the motion from consideration as determinative of the directory character of the allocution statute within the meaning of Section 4058, supra. This holding relies for its support upon what may be demonstrated to be the faulty reasoning of this court in State v. Kile,231 Mo. 59, which cites as precedents for the conclusion there reached the cases of State v. Fraser, 220 Mo. 34, and State v. Pritchett, 219 Mo. 697. An examination of these cases shows that the rulings therein had reference solely to the manner in which the filing of the motion for a new trial should be considered upon appeal and that alone; the holding being that if the motions were not filed within four days after the verdict and before judgment only the records proper would be considered upon appeal. Concerning the correctness of this ruling as applied to a limitation upon the appellate court there can be no question. [State v. Whalen, 248 S.W. (Mo.) 392 and cases.] That however was not the question seeking solution in the Kile Case and in that at bar, which was the effect of the untimely filing of a motion for a new trial upon the statute requiring the allocution of the accused. A motion *Page 283 for a new trial has several purposes; its province in an appellate court is to point out the errors committed during the trial and to preserve the exceptions saved therein for review; in a trial court, it calls attention to the errors alleged to have been committed in order that they may be corrected by the trial judge so long as the case is in gremio legis, or more broadly speaking at any time during the term the judgment was rendered. Therefore, whenever the motion is filed in the trial court within, of course, the limit stated, it must, as a necessary consequence of its nature and purpose, carry on its face proof of the knowledge of the accused of the verdict, without which he could not have filed the motion. Possessed of this knowledge he has in this regard been deprived of no right and the allocution statute should, as to him, be held to be directory. The statutes here under review, if construed otherwise, will not only occasion unnecessary delay in the determination of the case — a matter entitled to more serious consideration than is sometimes given to it in appellate courts — but it will necessitate the useless procedure of remanding the case to ascertain if the accused has been informed as to the verdict when the record staring us in the face shows that in the filing of the motion for a new trial he was necessarily possessed of this knowledge and has in this regard been deprived of no right to his detriment. Judges NAPTON and HENRY so held in effect in the Stark and Ball cases, supra, which rulings were adopted by the court, and we would not err if we followed more closely the ancient landmarks. When the principles of the law are fixed, errors of construction are of infrequent occurrence; when in a state of flux they breed divergent conclusions often at the expense of justice.
This case instead of being remanded should, upon a showing that the record proper contained no errors, have been affirmed. *Page 284