State v. Earll

• Decision Date: 12 February 1910
• Citation: 225 Mo. 537,125 S.W. 467
• Parties: STATE v. EARLL.
• Court: Missouri Supreme Court

125 S.W. 467

225 Mo. 537

STATE v. EARLL.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. COURTS (§ 231) — APPELLATE JURISDICTION — CONSTITUTIONAL QUESTION.

To give the Supreme Court jurisdiction of an appeal from the conviction of a misdemeanor, a constitutional question must be involved and properly raised in the court below.

2. CRIMINAL LAW (§ 1086) — APPELLATE JURISDICTION — CONSTITUTIONAL QUESTION — PRESENTATION OF QUESTION.

As a demurrer is recognized as a pleading (Rev. St. 1899, § 596 [Ann. St. 1906, p. 622]), it is a part of the record proper on review, and a demurrer to an information for a misdemeanor, questioning the constitutionality of the statute under which it is filed, which is not preserved in the record proper, does not present any question for review.

3. INDICTMENT AND INFORMATION (§ 196) — WAIVER OF RIGHT TO DEMUR.

The right to demur to an information for a misdemeanor is waived by a plea of not guilty.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

C. W. Earll was convicted of unlawfully selling artificially colored vinegar, and he appeals. Transferred to the Kansas City Court of Appeals.

G. W. Duvall, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

BURGESS, J.

At the April term, 1909, of the criminal court of Jackson county, the prosecuting attorney of said county filed an information charging "that C. W. Earll, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 17th day of May, 1909, at the county of Jackson, state of Missouri, did then and there unlawfully and knowingly sell, and offer for sale, exchange, and delivery, a certain quantity of vinegar, to wit, one pint of vinegar, artificially colored with caromel or other artificial coloring matter, contrary to the statutes in such cases made and provided," etc. On the day of the filing of said information the defendant was arraigned, and entered his plea of not guilty. Thereafter the defendant filed a demurrer to the information, which demurrer the court overruled. Thereupon the parties announced ready for trial, waived trial by jury, and submitted the case to the court upon the following agreed statement of facts, to wit: "That said defendant, C. W. Earll, on the 17th day of May, 1909, at the county of Jackson, state of Missouri, did then and there sell, and offer for sale, exchange, and delivery, one pint of vinegar artificially colored with caromel; that said caromel coloring is harmless, and was used for coloring purposes only; and that said bottle containing said pint of vinegar was labeled "Colored Distilled Vinegar," and that said vinegar was in fact "colored distilled vinegar." The court, after hearing the arguments of counsel, found the defendant guilty, and assessed his punishment at a fine of $100. Timely motions for new trial and in arrest of judgment were filed and overruled, and judgment entered against defendant for $100 and costs. At the same term defendant appealed to this court.

The demurrer filed in this case does not appear in the record proper, where it should be; but the same is found in ...