State v. England

• Decision Date: 11 August 1928
• Docket Number: No. 4493.,4493.
• Citation: 8 S.W.2d 1077
• Parties: STATE v. ENGLAND.
• Court: Missouri Court of Appeals

8 S.W.2d 1077

STATE v. ENGLAND.

No. 4493.

Springfield Court of Appeals. Missouri.

August 11, 1928.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Joe England was convicted of possessing intoxicating liquor, and he appeals. Transferred to the Supreme Court.

John T. Burgess, Pros. Atty., of Monett, for the State.

BAILEY, J.

Defendant was convicted of possessing intoxicating liquor. A jury being waived, the trial was to the court, which found defendant guilty and assessed his punishment at a fine of $200. Defendant has appealed.

The cause originated in Barry county, and was transferred to Lawrence county on a change of venue. The original information charged defendant with transporting "hootch, moonshine, whisky," a felony, and also with possession thereof, a misdemeanor. Defendant filed a motion to quash this information. This motion came after the state had dismissed as to the felony charge. Upon the overruling of the motion to quash, defendant filed a plea in abatement, setting up, among other things, that said information "is in violation of section 30, of the Constitution of Missouri, in that it deprives the defendant of due process of law." While the article of Constitution is not set forth, we must assume the plea is directed to section 30 of article 2 of the Constitution. This plea in abatement was likewise overruled. Defendant refused to plead or offer any testimony. The constitutional question, if it be a question, is preserved in defendant's motion for new trial.

This court is therefore without jurisdiction, and the cause should be transferred to the Supreme Court. It is so ordered.

COX, P. J., and BRADLEY, J., concur.