State v. Craig

• Decision Date: 23 November 1909
• Parties: STATE v. CRAIG.
• Court: Missouri Supreme Court

122 S.W. 1006

223 Mo. 201

STATE v. CRAIG.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. CRIMINAL LAW (§ 1024) — APPEAL — APPEAL BY STATE — RIGHT.

As a rule, the state cannot appeal from a judgment for accused, whether it is upon a verdict of acquittal or upon the determination of a question of law, unless a right of appeal is unequivocally conferred by statute.

2. CRIMINAL LAW (§ 1024) — APPEAL — RIGHT OF STATE TO APPEAL.

Under Rev. St. 1899, § 2708 (Ann. St. 1906, p. 1592), allowing the state to appeal in criminal prosecutions only in the cases mentioned in the next section, and section 2709, permitting the trial court, in its discretion, to grant to the state an appeal, if the prosecuting attorney prays it, where any indictment is quashed or adjudged insufficient on demurrer, or where the judgment thereon is arrested, the state cannot appeal from a judgment overruling a demurrer to a plea in abatement of the indictment, based upon matters dehors the face of the indictment.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Ivis Craig was indicted for setting up and keeping a poker table in violation of statute, and from a judgment overruling a demurrer to a plea in abatement of the indictment, and sustaining the plea, and discharging accused, the State appeals. Appeal dismissed.

E. W. Major, Atty. Gen., and John M. Atkinson, Asst. Atty. Gen., for the State. M. R. Lively, for respondent.

GANTT, P. J.

On November 2, 1908, an indictment was returned by the special grand jury for Jasper county to division No. 1 of the circuit thereof, then presided over by Hon. Haywood Scott, charging defendant with the crime of setting up and keeping "one poker table," in violation of the statutes of this state. The indictment is in regular form, and is duly signed by the prosecuting attorney of Jasper county, and the foreman of the grand jury returned the same. On January 9th, thereafter, defendant filed his plea in abatement to said indictment, giving as a reason, among others, that said indictment was not returned into open court, but was returned to Judge Scott after the circuit court room had been by his orders closed and all persons excluded from the room, except the prosecuting attorney and a deputy clerk, and because persons not authorized by law were permitted in the grand jury room. On January 15th, thereafter, the prosecuting attorney of said county filed a demurrer to said plea in abatement. On January 23, 1909, said plea in abatement and demurrer thereto came on for hearing in said division No. 1, then presided over by Hon. Henry L. Bright. The court overruled the demurrer to the plea in abatement, and sustained the plea to the indictment, and discharged defendant. The state, through its prosecuting attorney, refused to plead further, duly saved an exception to the ruling of the court in overruling the demurrer to the plea, and in sustaining the plea in abatement to the indictment, and appeals to this court for a review as to the correctness of the ruling of the trial court in overruling the demurrer to the plea and sustaining the plea to the indictment. The indictment, plea in abatement, and demurrer to the plea are all set out at length in the record.

This is one of a number of appeals from the Jasper circuit, in all of which the right of the state to appeal from a judgment overruling a demurrer by the state to a plea in abatement of an indictment based upon matter dehors the face of the indictment itself is challenged, and of course the first proposition is whether this court can entertain the appeal. As a general rule, the state has no right to a writ of error or appeal in a criminal prosecution from a judgment in favor of a defendant whether upon a verdict of acquittal or upon the determination by the court of a question of law; unless it be expressly conferred by statute in the plainest and...