State v. Clevenger

• Court: Missouri Court of Appeals
• Writing for the Court: ROMBAUER
• Citation: State v. Clevenger, 20 Mo.App. 626 (Mo. App. 1886)
• Decision Date: 09 February 1886
• Parties: STATE OF MISSOURI, Respondent, v. N. T. CLEVENGER, Appellant.

20 Mo.App. 626

STATE OF MISSOURI, Respondent,

v.N. T. CLEVENGER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the Lawrence County Circuit Court, M. G. MCGREGOR, Judge.

Reversed and remanded.

N. GIBBS, for the appellant.

W. H. SKINNER, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

Upon an information filed by the prosecuting attorney, before a justice of the peace, the defendant was convicted, January 13, 1885, of selling liquor without license.

On the next succeeding day he filed an affidavit and bond for appeal, and was granted an appeal to the circuit court. At the return term of the appeal, the prosecuting attorney moved to dismiss it, because it was not taken immediately after the judgment was rendered. The motion was sustained by the court, and the defendant appeals.

The statute provides that any person convicted before a justice of the peace, may appeal, if he shall, immediately after judgment is rendered, file an affidavit, etc., and shall, also, enter into recognizance in such sum as the justice shall deem proper, with good and sufficient sureties, to be approved by him, etc.

Upon hearing of the motion, the only evidence offered by the state, was the transcript of the justice reciting the facts that the defendant was tried and found guilty, January 13, and appealed January 14, 1885.

It is evident that the trial court, in passing upon the motion, construed the word, “immediately,” as meaning “then and there,” or, “on the same day.” The words, “forthwith,” “immediately,” “instanter,” taken alone, exclude all mesne time; they have, however, not received that construction when applied to legal proceedings, or when fixing the time within which an act was to be done. Legal lexicographers define them as being synonymous with “within twenty-four hours.” 1 Bouv. L. Dict. 682; 1 Ab. L. Dict. 581. But the most accurate definition is that adopted by Baron Alderson in Thompson v. Gibson (8 Mees. & W. 281), “such convenient time as is reasonably requisite for doing the thing.” That definition has substantially been adopted by American courts. Richardson v. End, 43 Wis. 316; McLure v. Colclough,17 Ala. 89, 100; Gaddis v. Howell, 31 N. J. L. 313; 1 Bish. Cr. Proc., sect. 409.

In the case under consideration, the statute requires the defendant to make his affidavit and enter into recognizance, with good and sufficient sureties, immediately after judgment is rendered. The context shows that the word immediately does not mean then and there, but is equivalent with the words, with all convenient speed. An appeal perfected, within the next succeeding day after the judgment...