ON REHEARING.
KENNISH, P. J.This ease has been fully considered again upon a rehearing, with the result that we are constrained to adhere to the opinion heretofore delivered, sustaining the motion of the Attorney-General to transfer the cause to the St. Louis Court of Appeals.
The question is not whether this court will, as a matter of discretion, hear and determine this case *157upon its merits,. but rather, has the court authority to entertain appellate jurisdiction thereof?
The Constitution fixes the appellate jurisdiction of this court, and in a given case the record alone must determine whether jurisdiction on appeal is in this court or the Court of Appeals.
It is admitted that this court is withoutjurisdiction in this case unless a constitutional question was preserved for decision. Appellant seeks to meet this requirement by reliance upon an amended demurrer, a motion for a new trial and a motion in arrest of judgment, each of which presents a constitutional question, and if either is properly a part of the record which this court is authorized to consider, then there is no doubt as to our jurisdiction of the appeal. However, as shown in the opinion herein, the amended demurrer was filed after a plea of not guilty had been éntered, the plea not having been withdrawn. Under the ruling of this court in the case of State v. Earll, 225 Mo. 537, the demurrer thus filed cannot be considered. That leaves the motions for new trial and in arrest. The record explicitly shows that these motions were not filed until after final judgment and sentence had been pronounced, and under both the express provisions of the statute and the decisions of this court, such motions must be filed before judgment or they cannot be considered as a part of the record in the-cause.
In the conclusion reached we have not overlooked the ease of State v. Carson, 231 Mo. 1. That case is distinguishable from the case in hand, in that defendant Carson did not assent to judgment being pronounced, before the fifing of the motion for a new trial, but on the contrary objected and notified the court at the time that such motion would be filed within the time allowed by law.
Ferriss and Brown, JJ., concur.