(dissenting). — I respectfully dissent from the holding in the principal opinion. The plaintiff in error, hereinafter called plaintiff, was charged in the circuit court of Pike County with robbery in the first degree by means of a dangerous and deadly weapon, a glass bottle, under Mo.R.S. 1949, § 560.135, Y.A.M.S. One count of the information charged him as an actual participant in the robbery and the other as an accessory before the fact. In either case the maximum punishment was death, § 560.135, supra, and Mo.R.S. 1949, § 556.170, Y.A.M.S., but the punishment assessed by the jury was only ten years’ imprisonment in the penitentiary. 'He is now confined there, and brings his case here by writ of error under Mo.R.S. 1949, § 547.270, V.A.M.S., without counsel. The transcript sent up covers only the record proper. The first question to be decided is the scope of our review.
Apparently the convict was not notified personally of the date on which his case was set for hearing here because the record sent up showed he had counsel below, and he filed no brief and failed to appear — which latter did not prejudice his right to have his case determined, under § 547.270, supra. The cause was submitted to this court by the Assistant Attorney General on his brief without oral argument. But later the same day, after the submission, plaintiff filed a manuscript brief. This delay was caused not only by the plaintiff’s failure to receive notice but also by the fact that the Assistant Attorney General had first served his brief on plaintiff’s trial counsel in Pike County, and they declined to accept service thereof since they no longer represented him.
Then the Assistant Attorney General served his brief on plaintiff in the penitentiary only one day before the hearing in this court, which was plaintiff’s first notice thereof. And as stated after the submission here but on the same day, plaintiff filed his manuscript brief. Most of his assignments therein raise matters of exception, whereas no bill of exceptions has been brought up. So it is necessary to determine whether these matters of exception can be considered on this review — and whether plaintiff is still entitled to have brought up the bill of exceptions, or a transcript of the pertinent evidence under our Rules 1.31 and 1.34(b). [Emphasis in the following six paragraphs is ours].
Mo.R.S. 1949,- § 547.110, Y.A.M.S., applicable to criminal cases, provides: “'When any appeal shall be taken or writ of error issued, which shall operate as a stay of proceedings it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause including the hill of *377exceptions, judgment and sentence, and certify and transmit same to the office of the clerk of the proper appellate court without [87] delay;” — provided that the parties may agree upon an abbreviated or partial transcript.
Mo.R.S. 1949, § 547.130, Y.A.M.S., provides that: “No such appeal or writ shall stay or delay the execution of such judgment or sentence, except in capital cases, unless the supreme court, or a judge thereof, or the court in which the judgment was rendered, or the judge of such court, on inspection of the record, shall be of the opinion that there is probable cause for such an appeal or writ of error, or so much doubt as to render it expedient to take the judgment of the supreme court thereon” — and shall order that the appeal shall operate as a stay of proceedings.
No such order has been made in this case. And while the punishment for the crime under § 560.135, supra, ranges from death to a minimum penitentiary sentence of five years, yet the punishment assessed by the jury was only ten years’ imprisonment in consequence of which the cause is not regarded as a capital case,1 automatically staying the proceedings pending appeal and requiring a full bill of exceptions under § 547.110, supra.
Mo. R.S. 1949, § 547.120, Y.A.M.S., provides: “When the appeal or writ of error does not operate as a stay of proceedings, such transcript shall be made out, certified and returned, on the application of the appellant or plaintiff in error, as in civil cases, except that the costs of the transcript shall not be required in advance.”
Mo.R.S. 1949, § 512.110(2), Y.A.M.S., applicable to appeals in civil cases, provides that “The transcript on appeal shall contain all questions to be presented to the appellate court for decision by either appellant or respondent, except that at the direction of either party the transcript shall include all of the evidence in the case * * If the appellate court find any thereof unnecessary, the cost thereof shall be paid by the party responsible for its inclusion.
When plaintiff filed here on June 2 his petition for a writ of error and a motion for leave to proceed as a poor person (both verified), he prayed in both that the circuit court be required to send up the record and bill of exceptions in duplicate. In the motion he asked that the bill of exceptions be furnished to him, “in order that he may properly prepare his brief in the cause.” [Emphasis ours]. In his petition for the writ he alleged the State failed to adduce evidence sufficient to sustain the verdict, judgment and sentence, and that “certain errors” were committed by the State and the trial court in the absence of which a different result might have been *378reached. This court ordered the trial court to “send up a perfect transcript of the record and proceedings in the cause aforesaid as fully as the same remain of record before you in said court,” but did not specify in terms a transcript of the evidence.
Mo.R.S. 1949, § 485.100, Y.A.M.S., likewise applicable to civil cases, contains a proviso that in criminal cases where an appeal is taken or a writ of error obtained by the defendant, and it shall appear to the satisfaction of the court that the defendant is unable to pay the costs of such transcript for the purpose of perfecting the appeal, the court shall order the same to be furnished and the court reporter’s fees for making the same shall be taxed against the state or county as may-be proper, duplicate transcripts to be furnished, for one of which he shall be paid.
It will be observed this statute provides that in criminal cases, brought up either by appeal or writ of error, if “the court” finds the defendant is unable to pay the costs of the transcript, “the court” shall order it furnished at the expense of the state or county. This raises the question as to what the words “the court” mean in their context. In an appealed case it is obvious they refer to the trial court which was the court of original jurisdiction. But when a writ of error is obtained from this court, it is a new suit reviewing the proceedings below and not a mere continuation thereof.2 And this [88] court is the one that has original jurisdiction of the review proceedings.
Writs of error in civil cases were abolished by the new Civil Code, Laws Mo. 1943, pp. 353, 390, Sec. 125; Mo.R.S. 1949, § 512.010, Y.A. M.S. But this statute expressly provides it is “not intended to apply to criminal cases.” And ever since the writ has been used in criminal cases under §§ 547.110, 547.120, 547.130, 485.100, supra. Likewise our Rule 1.34(c) fixes the time within which the writ may be brought at one year, long after the time for appeal has lapsed (end of term). Mo.R.S. 1949, § 547.070, V.A.M.S. And the plaintiff in error has the right to save exceptions and bring them up on a writ of error in a bill of exceptions approved by the trial court,3 if he filed a motion for new trial which was overruled. And the plaintiff in error here did that below.
State ex rel. McPike v. Hughes, 355 Mo.1022, 1028-9, 199 SW. (2d) 405, 408(4, 8), held the writ of error was abolished. But it was dealing with a civil case. The ruling was based on Art. Y, See. 4, Const. Mo. 1945-, which provides: “The Supreme Court * * # may issue and determine original remedial writs.” The opinion asked: *379“Can we say the use of the blanket term ‘original remedial writs’ intended to restore writs of error which had been theretofore abolished by the legislature by a law enacted in 1943? We think not.” But the law referred to was Sec. 125, Laws Mo. 1943, supra, which expressly declared it was not intended to. apply to criminal eases. So the decision cannot be treated as authority that writs of error have been abolished in criminal cases.
The MePike case, supra, also held the Constitution of 1875 was “merely a method of review applicable to appellate jurisdiction rather than to original jurisdiction. ’ ’ And that is true in the sense that writs of error and appeals both involve a review of the proceedings, and sometimes of the evidence, in a lower court. But in a writ of error case the upper court is the court of original jurisdiction. It orders the record of the lower court to be seiit up. And it may do so after the lower court has lost jurisdiction of the case by lapse of the term without an appeal, except in such matters as issuing and improving a bill of exceptions and correcting errors in the record. Mo. R.S. 1949, § 546.090, Y.A.M.S. No one else can do that except the judge, clerk and reporter of the lower court.
This being true we have power to order a bill of exceptions sent up under § 485.100, supra, as the plaintiff in error has asked that we do. Indeed, even in appealed cases § 512.110(3), supra, provides that if anything material to either party is inadvertently omitted or misstated in the transcript sent up, the appellate court may order it corrected, or order a supplemental transcript sent up.
In State ex rel. LaRue v. Hitchcock, 171 Mo.App. 109, 127(9), 153 SW. 546, a civil case, the plaintiff-relator had sued as a poor person on a motion duly sustained by the trial court. After an adverse judgment she appealed to the St. Louis Court of Appeals. She then moved the trial court to require the court reporter to furnish her without payment of fees a complete transcript of the evidence with the objections, rulings and exceptions pertaining thereto. The trial court overruled her motion, and the St. Louis Court of Appeals by mandamus required the trial judge to order the reporter, an officer of the court, to furnish the transcript. If that may be done in a civil suit, certainly it can be done in a criminal case involving the liberty of the accused.
And in State ex rel. Martin v. Wofford, 121 Mo. 61, 73-4 (10-11), 25 SW. 851, 854(5), the relator was convicted of murder in the first degree and appealed to this court. As a pauper he applied for a full transcript of the evidence and exceptions saved, for use on his appeal, but the court reporter refused to furnish it. He then moved the trial court to make an order to [89] that effect on the court reporter, but that also was refused. On bringing mandamus here the trial judge was required to make the order on the reporter.
*380In his brief here, the plaintiff in error makes six assignments of error, at least four of which required the production of evidence below. In his petition for the writ he alleged the evidence was insufficient to sustain the verdict, judgment and sentence. We are unable to rule on these assignments without a bill of exceptions covering the subject matter thereof. The plaintiff asked for duplicate bills of exceptions in his application for the writ of error, under § 485.100, supra, but it was not in terms ordered brought up. Acting pro se he obviously was ignorant of the condition of the record as brought up and even of the date of hearing until he was served with the State’s brief the day before the hearing. For these reasons I dissent from the holding in the principal opinion and think the submission should be set aside and the cause held on the docket until the record is completed.
Tipton, J., concurs.Ex parte Dipley, 233 Mo. 235, 241, 135 SW. 56, 58; State v. Shepard, 334 Mo. 423, 426(1), 67 SW. 91, 93(1).
3 C.J., p. 304, § 12; 4 C.J.S., p. 72, § 11c; Stafford v. Burroughs (Mo.) 186 SW. (2d) 588(1); Cunningham v. Kansas City, 225 Mo. App. 1063 (1), 38 SW. (2d) 734, 735(1).
State v. Dimmick, 331 Mo. 240, 243 (1, 2), 53 SW. (2d) 262, 263(1); State v. Hardy, 339 Mo. 897, 899-900 (1, 2), 38 SW. (2d) 593; State ex rel. Malin v. Merriam, 159 Mo. 655, 660-1, 60 SW. 1112.