83 S.W. 975 (Mo. 1904), State v. Rosenblatt

Citation:83 S.W. 975, 185 Mo. 114
Opinion Judge:GANTT, P. J.
Party Name:THE STATE v. ROSENBLATT, Plaintiff in Error
Attorney:C. C. Crow for plaintiff in error. Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
Judge Panel:GANTT, P. J. Burgess, J., absent.
Case Date:December 13, 1904
Court:Supreme Court of Missouri
 
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Page 975

83 S.W. 975 (Mo. 1904)

185 Mo. 114

THE STATE

v.

ROSENBLATT, Plaintiff in Error

Supreme Court of Missouri, Second Division

December 13, 1904 [*]

Error to Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.

Affirmed.

C. C. Crow for plaintiff in error.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) As applicable to section 2697, Revised Statutes 1899, it will be observed that final judgment in the court below must first be had before a writ of error will lie; in other words, all matters pertaining to the case at bar must first have been completely disposed of before this court will take cognizance of it by way of a writ of error. In re Rose, 80 Cal. 170; Tylar v. Hamersley, 26 Am. Rep. 479; Tompkins v. Brown, 123 Mich. 377; State v. Crilley, 20 Wis. 231; State v. Jenks, 16 Wis. 332; Eastin v. Gillett, 16 Wis. 546. The record in this case discloses that on the 26th day of June, 1903, defendant entered a plea of guilt to the charge preferred against him in the indictment. On the same day he filed a motion in arrest of judgment, and this motion, as shown by the record, remains undisposed of, so that no final judgment has been rendered by the court below. Cullen v. Whealdon, 1 Mo. 1; Harr v. Knighton, 9 Mo. 180; Posy v. Buckner, 3 Mo. 604; State v. Thompson, 30 Mo.App. 503. Where the record shows that a case has not been disposed of by the lower court, but is there pending on a motion in arrest of judgment, a writ of error will be dismissed. Williams v. Jones, 69 Ga. 757; Young v. Grundy, 6 Cranch 51; Winn v. Jackson, 12 Wheat. 135; Montgomery v. Anderson, 21 How. 386; Martin v. Crow, 28 Tex. 614. (2) There can be no question but that the judgment upon the indictment in question is valid when taken into consideration along with the defendant's plea of guilt. By this plea he has waived all irregularities and informalities thereunder, and especially is it true that an objection levelled against the indictment on the grounds of duplicity is cured by the plea, because all such irregularities are cured unless exception be taken thereto before pleading to the charge. The case then falls upon the proposition that where judgments have been entered by consent of the parties writs of error do not lie. McBride v. Hunter, 64 Ga. 65; People v. Land Owners, 108 Ill. 442.

GANTT, P. J. Burgess, J., absent.

OPINION

[185 Mo. 116] GANTT, P. J.

From a conviction and sentence by the criminal court of Buchanan county, the defendant has taken his writ of error to this court. Preliminary to any investigation to the sufficiency of the indictment, the Attorney-General has moved to dismiss the writ of error on the ground that the cause was not prosecuted to a final judgment in the criminal court, because there is a motion in arrest of judgment yet pending before and undisposed of by the criminal court, and also because the record shows that

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defendant entered a plea of guilty and agreed to the judgment against him and that no writ of error will lie in such case. For a proper understanding of the questions thus raised, we must look to the record certified to us.

It appears that a grand jury was duly impaneled [185 Mo. 117] at the March term, 1903, of the criminal court of Buchanan county, and on the 4th day of April, 1903, the said grand jury returned into court an indictment against the defendant for setting up and keeping divers gambling devices, adapted, devised and designed for the purpose of playing games of chance for money and property, and enticed and permitted divers persons to the grand jury unknown to bet and play at and upon and by means of said gaming tables and devices. Afterwards on the 6th day of April, 1903, the defendant was duly arraigned and pleaded not guilty to said indictment.

Afterwards on the 26th day of April, 1903, and at the same term the record in said cause recites: "Comes now the prosecuting attorney, and the defendant in open court withdraws his plea of not guilty...

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