State v. Biesemeyer

• Decision Date: 03 May 1909
• Citation: 136 Mo. App. 668,118 S.W. 1197
• Parties: STATE v. BIESEMEYER.
• Court: Missouri Court of Appeals

118 S.W. 1197

136 Mo. App. 668

STATE v. BIESEMEYER.

Kansas City Court of Appeals. Missouri.

May 3, 1909.

1. CRIMINAL LAW (§ 1083)—APPEAL—JURISDICTION.

After an appeal is granted, the jurisdiction of the case is with the appellate court, although the record may be corrected by the trial court, and the order granting the appeal cannot be set aside without notice to the appellant.

2. INDICTMENT AND INFORMATION (§ 15) — SUCCESSIVE INDICTMENTS.

It is a sufficient defense in a criminal prosecution that an appeal from a conviction under a prior information is pending.

Appeal from Circuit Court, Osage County; Wm. A. Davidson, Judge.

L. F. Biesemeyer was convicted of practicing dentistry without a license, and appeals. Reversed, and defendant discharged.

Pope & Vaughan, Monroe & Zevely, and J. W. Vosholl, for appellant. John P. Peters, Pros. Atty., and W. E. Owen, for the State.

ELLISON, J.

On information by the prosecuting attorney of Osage county the defendant was convicted in the circuit court for practicing dentistry without procuring a license, as required by Laws 1905, p. 217 (Ann. St. 1906, § 8534). In due time he filed a motion for new trial and in arrest of judgment. These motions were overruled, and thereupon he in due form applied for an appeal to this court, which was granted, and he was released on a proper bond. Several days afterwards, but during the same term, it seems the trial court discovered that defendant had not been arraigned, and thereupon, without any notice to him, set aside the order granting him his appeal, and set the case down to be tried on June 18th, a day of the same term. On that day the prosecuting attorney entered a nolle prosequi, and then filed a new information for the same offense. Defendant was again put upon trial and again convicted. He made due plea of his former conviction and appeal. These were overruled. Again he appealed to this court; the latter being the appeal before us.

The law seems well settled that, while a record may be corrected by the trial court after an appeal has been granted, yet the appeal itself is pending in the appellate court from the time of its being granted, and the jurisdiction of the case is with the appellate court. Ladd v. Couzins, 35 Mo., loc. cit. 515; De Kalb Co. v. Hixon, 44 Mo., loc. cit. 342; Ross v. Railway Co., 141 Mo. 397, 38 S. W. 926, 42 S. W. 957; Sublette v. Railway Co., 66 Mo. App., loc. cit. 334. The St. Louis Court of Appeals in Werckmann v. Taylor, 112 Mo. App. 365, 87 S. W. 44, decided that, while the appeal vested jurisdiction of the case in the appellate court, yet that was only true so long as the order granting the appeal remained in force, and that the trial court had authority during the term to set aside the order and thus annul the appeal. But it seems to us that question is not for decision in this case from the fact that the order here made was made without notice to defendant. When he was granted his appeal and had given his bond and was discharged, he had a right to assume that no further steps would be taken in the case without notice to him. It was not a matter in which he had no part or interest or right to be heard. An appeal may be from a trial in which the defendant may have the right to demand a judgment that he is not guilty, or that he is not liable...