State v. Boehler

• Decision Date: 18 May 1909
• Citation: 119 S.W. 385,220 Mo. 4
• Parties: STATE v. BOEHLER.
• Court: Missouri Supreme Court

119 S.W. 385

220 Mo. 4

STATE v. BOEHLER.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

COURTS (§ 231)—CONSTITUTIONAL QUESTIONS.

Where, in a prosecution for violating the local option law, the constitutionality of the law was mooted for the first time in the motion in arrest of judgment, and no exception was taken to the overruling of that motion, and the motion was not embodied in the bill of exceptions, there was no constitutional question in the record giving the Supreme Court jurisdiction of the appeal.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

A. E. Boehler was convicted of a misdemeanor, and appeals. Appeal ordered transferred to St. Louis Court of Appeals.

Pettingill & Montgomery, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

GANTT, P. J.

This is an appeal from the judgment of the circuit court of Scotland county, imposing a fine for the violation of the local option law. The offense is a misdemeanor, and the appeal should have been granted and certified to the St. Louis Court of Appeals, unless there is a constitutional question presented in the record for adjudication. An examination of the record discloses no such question.

Before arraignment the defendant filed a motion to quash, but in no way challenged the constitutionality of the law. That motion is not preserved in the bill of exceptions. The constitutionality of the law was not assailed, either in the objections to testimony, the instructions, or the motion for new trial. In the motion in arrest the constitutionality of the local option law was mooted for the first time. No exception was taken to the overruling of that motion, nor was the motion embodied in the bill of exceptions. Hence it is obvious that there is no constitutional question in the record, and this court has no jurisdiction of this appeal; and it is ordered that this appeal be transferred to the St. Louis Court of Appeals.

BURGESS and FOX, JJ., concur.