State v. Anderson

• Decision Date: 31 October 1884
• Parties: THE STATE v. ANDERSON, Appellant.
• Court: Missouri Supreme Court

84 Mo. 524

THE STATE

v.ANDERSON, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Clair Circuit Court.--HON. CHAS. G. BURTON, Judge.

REVERSED.

Ferguson, Nesbit & Harrison, and Shaffner & Stratton for appellant.

D. H. McIntyre, Attorney General, for the state.

The statute provides that an appeal may be had from a conviction before a justice if the defendant, “immediately after judgment is rendered, file an affidavit, stating that he is aggrieved by the verdict and judgment in the case, and that he does not make his appeal for vexation or delay, and shall also enter into a recognizance,” etc. Sec. 2058, R. S. 1879. This section evidently means that both the affidavit and bond shall be filed immediately after the verdict and judgment, for the section immediately succeeding provides that an appeal may be taken, though no recognizance be given. Sec. 2059, R. S. 1879. It could never have been intended that upon a conviction before a justice, the person convicted might simply file his affidavit for appeal, and thereupon be allowed by the justice to go forth in search of sureties, without limit as to when his bond should be filed. This would render it possible in all such cases for persons so convicted to escape. In order to perfect his appeal, defendant must either file his bond immediately, or stand committed, in which case he may appeal without recognizance.

EWING, C.

This was a proceeding before a justice of the peace, on information in the name of a private citizen, against the appellant, under section 5436, Revised Statutes, 1879, for selling intoxicating liquors in quantities less than one gallon, without license as a dramshop keeper. Trial before a jury, verdict of guilty, assessing a fine of two hundred and fifty dollars, with judgment thereon. Appeal to the circuit court, when the prosecuting attorney filed a motion to dismiss the appeal, for the reason “that said appeal was not perfected in the time provided for by law.” On the hearing of this motion, the defendant offered to prove by the justice of the peace who tried the case, A. B. B. Lewis, “that at the time the verdict was rendered before him, as justice of the peace, it was nearly dark, and that he informed him, the defendant, that he could take the bond which he (defendant) had executed, to Roscoe, his home, for signature by his securities, and requested him to have P. Butler, justice of the peace at Roscoe, to approve the same, if he thought it good, and when it was so approved, to return it to him, and he would approve it.” Defendant, also, offered himself as a witness to prove that at the time judgment was rendered against him it was nearly dark. That he prepared the bond immediately after the verdict was rendered, and signed the same, but there was no one present he could get as surety and requested the justice to give him time to make the bond, and that Lewis told him to have the bond signed and approved by Butler, at Roscoe, and send it to him, and he would approve it. That the securities signed it on the sixth, Butler approved it on the sixth, and it was delivered to Lewis on the seventh, who then approved it. The court refused to admit this offered testimony, and sustained the motion to dismiss, and the defendant then appealed to this court.

I. The question is as to the proper construction of section 2058, Revised Statutes, 1879, which reads as follows: “Any person convicted before a justice of the peace for any misdemeanor under the provisions of this article, may appeal to the circuit court * * * if he shall, immediately after judgment is rendered, file an affidavit, stating that he is aggrieved by the verdict and judgment in the case, and that he does not make his appeal for vexation or delay, and shall also enter into a recognizance in such sum,” etc. If the word ““immediately” in this section has reference to the recognizance to be filed, as well as to the affidavit, then its strict enforcement will, in most cases, amount to a denial of the right of appeal. It would require that one who was on trial for an alleged misdemeanor, must have present his bondsmen at the trial. Section 3126, Revised Statutes, 1879, provides that “words and phrases shall be taken in their plain or ordinary and usual sense.” But there are other rules of construction, although not statutory, equally binding...