State v. Carr

• Decision Date: 01 February 1898
• Citation: 142 Mo. 607,44 S.W. 776
• Parties: STATE v. CARR et al.
• Court: Missouri Supreme Court

44 S.W. 776

142 Mo. 607

STATE v. CARR et al.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

CRIMINAL LAW — WRIT OF ERROR BY STATE — QUASHING INFORMATION.

1. The state has no right to sue out a writ of error for prosecution of a crime, except where by statute expressly conferred.

2. Rev. St. 1889, §§ 4289, 4290, authorizing the state to appeal from the quashing of an indictment, do not include the right to appeal from the quashing of an information.

On Rehearing.

Rev. St. 1889, § 4062, providing that the trial in all proceedings on any information filed in a court of record shall be governed by the

law and practice applicable to trials on indictment for misdemeanor, relates exclusively to trials, and not to the process of appeal or error.

Error to St. Louis court of criminal correction; David Murphy, Judge.

Information by the state of Missouri against Frank Carr and others for maintaining a public nuisance. From the quashing of the information, the state brings error. Dismissed.

Thos. B. Harvey and Chester H. Krum, for the State. L. Bell, for defendants in error.

SHERWOOD, J.

The state brought error because the court of criminal correction quashed an information which charged defendants in the first count with maintaining a public nuisance, under section 3851, Rev. St. 1889, to wit, a common gaming house, within the common-law definition thereof; in the second count, with maintaining a disorderly house; and in the third count, with maintaining a common gaming house under section 3811, Id. The St. Louis court of appeals, from whence the writ of error issued, certified the case to this court on the ground that a constitutional question was involved. Until the year 1845 (Rev. St. 1845, p. 889, §§ 9, 10), the statutes of this state never authorized the state to take an appeal in a criminal cause. These sections recognize and give authority for the exercise of this right "only in the cases and under the circumstances mentioned in the succeeding section." Section 9. These cases and circumstances are thus defined in the next section (10): First, "when an indictment is quashed"; second, "or adjudged insufficient on demurrer"; or, third, "[when] judgment [thereon] is arrested." Such has been the statute law of this state ever since. Rev. St. 1855, p. 1204, §§ 13, 14; Gen. St. 1865, p. 856, §§ 13, 14; Rev. St. 1879, §§ 1985, 1986; Rev. St. 1889, §§ 4289, 4290. These sections are the same now as when first enacted, except that in the Revision of 1855 the words in brackets, "when" just before the word "judgment," and the word "thereon," have been added. The word "thereon" would seem to refer to the word "indictment," and to signify that the state would not be permitted to appeal on the third ground mentioned, except that the judgment is based on the insufficiency of the indictment, and not for any other cause of arrest. The addition of the word "thereon" would therefore seem to indicate the sedulous policy and care of the legislature to confine the right of appeal of the state to the insufficiency of the instrument known as an "indictment," whether attacked by motion to quash, demurrer, or motion in arrest. This statute was doubtless passed because of some doubt expressed by one of the judges in State v. Spear, 6 Mo. 644, decided in 1840, whether an appeal would lie in behalf of the state in a criminal case. Construing this statute, this court held, in a number of instances, that no appeal lay on behalf of the state except when brought within the precise cases and circumstances specified in the statute under consideration. State v. Bollinger, 69 Mo. 577; State v. Risley, 72 Mo. 609; State v. Heisserer, 83 Mo. 692; State v. Ashcraft, 95 Mo. 348, 8 S. W. 216; State v. Rowe, 22 Mo. 328. The manifest theory on which these adjudications proceed is this: That, inasmuch as the state is only allowed by the statute an appeal in three distinctly specified and exceptional cases, therefore the state's right of appeal rests on certain well-defined statutory exceptions, and that these exceptions, according to a familiar rule, are to be strictly construed. State v. Risley, supra. There was no statute authority in this state for the suing out by the state of a writ of error in a criminal cause until the enactment of section 1988 in the Revised Statute of 1879, authorizing this to be done. That section has now become section 4292, Rev. St. 1889. Though that section allows the state to sue out a writ of error, it can only be done in a "case in which an appeal would lie on behalf of the state"; that is, as provided in section 4290, supra. This new section doubtless originated in three decisions of this court, in which we ruled that no writ of error could issue at the instance of the state in a criminal cause. State v. Copeland, 65 Mo. 497; State v. Cutter, Id. 503; State v. Cox, 67 Mo. 46. In the last case mentioned we cited a number of authorities holding that the state possesses no right to sue out a writ of error in the prosecution of a crime, except where by statute expressly conferred. The same rule holds in such case as in an appeal by the state, which only lies where an indictment has been held insufficient on motion, demurrer, or motion in arrest. The meaning of the technical term "indictment" is well defined. It means now just what it did under Blackstone's definition, to-wit: "A written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented on oath by, a grand jury." Bl. Comm. bk. 4, p. 302. And if we look to section 6570, Rev. St. 1889, for a construction of the statute under review, we shall reach no different result as to the meaning of the term "indictment"; for it is there required that "technical words and phrases having a peculiar meaning in law shall be understood according to...