State v. Herman

• Decision Date: 08 February 1886
• Citation: State v. Herman, 20 Mo. App. 548 (Kan. App. 1886)
• Parties: STATE OF MISSOURI, Respondent, v. J. P. HERMAN, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 548

STATE OF MISSOURI, Respondent, v. J. P. HERMAN, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1886

APPEAL from St. Clair Circuit Court, HON. CHARLES G. BURTON, Judge.

Reversed and remanded.

Statement of case by the court.

Appellant was arrested on the twenty-ninth day of July, 1884, on the charge of illegally selling intoxicating liquor, taken before a justice of the peace, tried and convicted, and immediately demanded an appeal to the circuit court, whereupon he was again arrested, on a second charge, and on entering into his individual recognizance, was discharged until the next day when he was tried and convicted on said second charge, the trial lasting till ten o'clock at night, when he was then and there arrested on a third charge at ten o'clock p. m of that day, and discharged until the next day, when he was again tried and convicted, and thereupon he again applied for an appeal in all the cases.The justice granted an appeal on said last conviction and refused to grant in the other cases.Appellant then prayed the circuit court for a rule compelling the justice to grant an appeal or show cause, which, on hearing, the court discharged, and to which action of the courtappellant excepted and brings the case to this court.

JOHN H LUCAS, for the appellant.

I.Upon appellant's offer and proposal to appeal, the statute(sect. 3044, Rev. Stat.) requires the justice, on the request of the appellant to prepare bond and affidavit.This was requested, but the justice, instead of so doing, again had him arrested, and required him to enter into a recognizance for his appearance the next day.Sections 2058and3044 are to be construed together.State v. Thompson,81 Mo 166.

II.The action of the justice in the arrest of defendantimmediately on his first conviction, and before defendant had opportunity to prepare bond and affidavit, deterred defendant from going further than he did in the premises, and excused him from immediately filing his affidavit on his first conviction; and his duress being continuous from the first cause to the determination of the last trial strongly appeals to the court for a liberal construction of section 2058, supra.The supreme court of this state in State v. Anderson(84 Mo. 524), held that the word " immediately," will not be so literally construed as to have the effect of denying to defendant the right of appeal.In this case, the action of the trial court does have such effect.See, also, State v. Thompson, supra.

B. G. BOONE, Attorney-General, EMMET PHILIPS and M. A. FYKE, for the respondent.

I.Section 2058, Revised Statutes, provides " any person convicted before a justice of the peace for any misdemeanor * * * may appeal to the circuit court * * * if he shall immediately after judgment is rendered file an affidavit * * * and also enter into a recognizance, in such sum as the justice may deem proper," etc.The record shows conclusively that no affidavit, was made until two days after defendant was convicted in the first case and one day after he had been convicted in the second case.The record fails to disclose any request made by defendant upon the justice for an appeal, or that the justice prepared an affidavit.

II.This case is unlike that of State v. Thompson(81 Mo. 166).In that case the affidavit was filed immediately after the conviction; the question was as to the sufficiency of the bond.The court merely held that an informality in the bond (affidavit and bond having been filed and...