State v. Cunningham
| fullCitation | State v. Cunningham, 51 Mo. 479 (Mo. 1873) |
| Decision Date | 31 January 1873 |
| Citation | 51 Mo. 479 |
| Parties | STATE OF MISSOURI, Plaintiff in Error, v. L. P. CUNNINGHAM, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Lawrence Circuit Court.
H. Clay Ewing, Attorney General, for Plaintiff in Error
I. The State stands precisely as the defendants, as to its right to bring cases to this court, either by appeal or by writ of error. (State vs. Leapfoot, 19 Mo., 375; State vs. Baker, 19 Mo., 683; State vs. Wishon, 15 Mo., 504.)
Nathan Bray, for Defendant in Error.
The defendant was indicted for stealing a bond issued by the county of Lawrence for and on account of Pierce Township, of that county, payable to the Northwestern Railroad Company or bearer, at the National Park Bank in the city of New York, which bond is alleged in the indictment to be the property of the county of Lawrence.
The defendant moved to quash the indictment for several reasons, but the only one relied on here, is that the bond was not the property of Lawrence County, as appeared from the face of the bond and indictment. This motion having been sustained by the Circuit Court, the State excepted, and has brought the case here by writ of error.
A motion has been filed to dismiss the writ of error upon the alleged ground that a case of this sort can only be brought here by the State by appeal, and that a writ of error will not lie at the suit of the State. This point was before this Court in the State vs. Newkirk, 49 Mo., 472, and State vs. Peck, 51 Mo. 111, 1872, and we held that in this sort of case where there had been no trial and acquittal, the State might bring the case here by writ of error, under § 2, W. S., 1112. The State might also bring the case here by appeal under §§ 13 and 14, 2 W. S., 1114. But these provisions for an appeal do not prohibit a writ of error. The only difference is, that when an appeal is allowed the defendant may be held in custody or required to give bail; but if a writ of error be resorted to, he would be discharged till the case was determined, and if reversed and remanded for a trial, he might again be arrested on a writ issued for that purpose.
The motion to dismiss the writ will be overruled.
The point that the stolen bond was not such property as could be owned by the county of Lawrence, is not tenable. Although it was in reality a township bond; that is the township was the real debtor in this bond, yet the county could be come the owner of the bond, and would be the owner...
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... ... court of criminal correction, in regard to writs of error in ... criminal cases, was section 1, chapter 215, General Statutes, ... 1865. In State v. Newkirk, 49 Mo. 472, followed in ... State v. Peck, 51 Mo. 111, and in State v ... Cunningham, 51 Mo. 479, it was held that, by virtue of ... the foregoing statute, a writ of error would lie in behalf of ... the state in cases where there had not been a trial and ... acquittal, and, therefore, in a case where a judgment had ... gone against the state on motion to quash. But, in State ... ...
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...the cases and under the circumstances mentioned in the next succeeding sections." Notwithstanding this provision, it was held in State v. Cunningham, 51 Mo. 479, that a motion to quash an indictment is sustained in the lower court, the state can bring the case to this court by writ of error......
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Borrego v. Territory.
...the cases and under the circumstances mentioned in the next succeeding sections.” Notwithstanding this provision, it was held in State v. Cunningham, 51 Mo. 479, that “when a motion to quash an indictment is sustained in the lower court, the state can bring the case to this court by writ of......