State v. Clipper

• Decision Date: 01 February 1898
• Citation: 44 S.W. 264,142 Mo. 474
• Parties: STATE v. CLIPPER.
• Court: Missouri Supreme Court

44 S.W. 264

142 Mo. 474

STATE v. CLIPPER.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

CRIMINAL LAW — APPEALS BY STATE — WHEN LIE.

1. Under Rev. St. 1889, §§ 4289, 4290, allowing the state to appeal in criminal cases only where the indictment is quashed, or adjudged insufficient on demurrer, or where judgment thereon is arrested, the state cannot appeal from a judgment quashing an information, as an information

is not an indictment technically, and, under section 6570, words having a peculiar and appropriate meaning in law must be understood according to their technical import.

2. Where an information was drawn merely as preparatory to a preliminary examination before the judge of the court of criminal correction, as provided by 2 Rev. St. 1889, p. 2153, § 7, an appeal cannot be had from a judgment quashing such information, as sections 4289 and 4290, providing for an appeal by the state where the indictment is quashed, or adjudged insufficient on demurrer, or where judgment thereon is arrested, contemplate an appeal only from a court having jurisdiction to proceed to the trial for the offense charged.

Appeal from St. Louis court of criminal correction; David Murphy, Judge.

An information was filed against Lewis Clipper, charging him with assault with intent to kill. From a judgment quashing the information, the state appeals. Dismissed.

Thos. E. Mulvihill, for the State. John Gernez, for respondent.

SHERWOOD, J.

This appeal on the part of the state comes to this court, its basis being that the trial court, on motion of defendant, quashed an information which charged an assault with intent to kill, on the ground that it was verified by the oath of the wife of the injured party. Our state constitution provides "that no person shall, for felony, be prosecuted otherwise than by indictment, except," etc. Article 2, § 12. Section 4056, Rev. St. 1889, corresponds with and enforces this constitutional provision. It would seem, however, that the information was not drawn with a view to a trial in the court in which filed, but merely as preparatory to a preliminary examination of defendant before the judge of the court of criminal correction, sitting as an examining magistrate. 2 Rev. St. 1889, p. 2153, § 7. It matters not, however, what the purpose in filing the information was, since the right of the state to an appeal to this court is circumscribed by the following statutory provisions: "The state, in any criminal prosecution, shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding section. When any indictment is quashed, or adjudged insufficient upon demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney, that there is a reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, may cause the defendant to be committed or recognized to answer a new indictment; or if the prosecuting attorney prays an appeal to the supreme court, the court may, in its discretion, grant an appeal." Rev. St. 1889, §§ 4289, 4290. It is to be noted that these sections are very restrictive in their language. The state is "allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding section." These cases and circumstances are these, and no others: First, where an indictment is quashed; second,...