State v. Bishop
| Decision Date | 24 May 1886 |
| Citation | 22 Mo.App. 435 |
| Parties | STATE OF MISSOURI, Respondent, v. GALEN E. BISHOP, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Buchanan Circuit Court, HON. B. J. CASTEEL, Special Judge.
Reversed and remanded.
Statement of case by the court.
The information was for obstructing a public road by building a fence in it.
At a special term, May 28, 1885, defendant pleaded not guilty, and the cause was continued.
At the regular June term, 1885, defendant filed a motion to quash June 18, 1885, which was overruled.
On June 29, at the same term, the following entry was made: " Comes now the prosecuting attorney, and the defendant being in open court, now here, by agreement of parties in writing this cause, as well as the six following cases, shall be submitted to B. J. Casteel, as special judge. And comes now B. J. Casteel, and files oath of office as special judge. The oath being as follows: ‘ B. J. Casteel, being duly sworn, upon oath states that he will support the constitution of the United States and of the state of Missouri, and faithfully demean himself in the office of special judge in the above entitled causes, being seven in number.
‘ B. J. CASTEEL." DDD'
The extract following is from the bill of exceptions:
" Defendant having announced ready for trial, the jury was empaneled and sworn to try the case; and thereupon, over defendant's objection, he was arraigned, and, being arraigned, he waived formal arraignment, and pleaded not guilty, and the trial proceeded without defendant's being asked to announce, and without the jury being re-sworn."
The defendant was found guilty and appeals to this court.
His chief grounds for reversal, as stated by his counsel, are:
" 1. The jury were not re-sworn after arraignment.
4. Proof that defendant's grantee, in the spring of 1883 was a woman, who had been married and owned the land since 1868, and that he caused the alleged obstruction by fencing this land in the fall of 1883, was excluded.
5. The first instruction for the state is erroneous.
6. There is no order for the election of a special judge, nor an entry showing Judge Woodson's disqualication.
7. The special judge did not take the oath required by law."
JAS. F. PITT, for the appellant.
I. The defendant was compelled to plead after the jury had been sworn; and the jury was afterwards re-sworn. This was error. State v. Montgomery, 63 Mo. 296.
II. Proof of the establishment of a road upon the quarter section line in 1860, known to the public, and of the fact that Hardin gave fifteen feet for the purpose, would have tended to show that the travel over the uninclosed land was simply permission to avoid a ravine, and was so understood by the public. It was error to exclude it. Kyle v. Town of Logan, 87 Ill. 64; Brinck v. Collier, 56 Mo. 160; Onstott v. Murray, 22 Iowa 457.
III. The doctrine of adverse possession will not be applied to a person under disability, and if the travel began in 1871, defendant was entitled to show that the owner at the time was a married woman, his grantor.
IV. The first instruction for the state is erroneous, because it fails to tell the jury that the road must be continuously and uninterruptedly traveled for ten years, acquiesced in by the owner. Nor is there anything of similar import contained in the instruction. State v. Walters, 69 Mo. 465; State v. Wells, 70 Mo. 635; State v. Railroad, 45 Iowa 139.
V. The special judge had no authority under the agreement. The statute (sect. 1880) requires two entries of record, the one showing the disqualification of the sitting judge; second, an order for a special election. Neither of these was made.
VI. The oath taken by the special judge is not the one required by the statutes, and, therefore, he was not sworn at all and his acts are nullities. Watt v. Huse, 38 Mo. 210; Grant v. Holmes, 75 Mo. 109.
VII. The verdict is against both law and evidence.
I. Defendant's first objection is that he should have been re-arraigned after his motion to quash was overruled, and before the jury was sworn, on the ground that his motion to quash operated as a withdrawal of his plea theretofore entered. It will be observed, from the statement, that he was regularly arraigned and his plea of not guilty entered at the special term on May 28th, and that afterwards at the regnlar June term, he filed his motion to quash the information without first obtaining leave of court.
On this motion being overruled, and after the jury was sworn, defendant was again arraigned against his objection and exception. Generally matters of demurrer are waived by a plea to the merits. Though in practice, both civil and criminal, the answer of plea of not guilty is frequently withdrawn and a demurrer filed. They are inconsistent pleading and do not stand together, and a demurrer, when filed after a plea to the merits, would doubtless operate as a withdrawal of that plea. So too, at this day, motions to quash, in most instances, and demurrers, are without distinction. A motion to quash may reach outside the record and is only reviewable by being made a part of the record by a bill of exceptions. State v. Wall, 15 Mo. 208.
Allowing, then, the same rule to operate on a motion to quash, when it is in the nature of a demurrer, it would still not aid defendant's objection. He denominated his motion, as a motion to quash the information, whereas it is in fact merely a plea in abatement, on the ground of the pendency of another information. It is the only cause alleged in the motion. There was no proof offered to sustain it. We think it was such a motion as is covered by section 1846, Revised Statutes, where it is enacted that: " No plea in abatement, or other dilatory plea to an indictment or information, shall be received by any court, unless the party offering such plea shall prove the truth thereof by affidavit or some other evidence."
The motion, then, being merely a plea in abatement, should not have been entertained by the court, and it did not have the effect of withdrawing the original plea of not guilty. The second arrraignment, though improper after the jury was sworn, was unnecessary.
II. The offer of proof of the establishment of a public road by the county court at another place, and that the road overseer had, by mistake, worked the road on defendant's land, was for the purpose of showing that the defendant had not dedicated the road in question. On the question of dedication the evidence would have been relevant, but no such question is presented in the state's case; it is a question of adverse possession only. For this reason the court properly excluded the testimony.
III. The first instruction for the state is complained of for the reason that it did not, in terms, require the adverse user by the public to be continuous and uninterrupted for the statutory period of limitation. The instruction,...
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