State v. Lavelle
| Decision Date | 30 April 1883 |
| Citation | 78 Mo. 104 |
| Parties | THE STATE v. LAVELLE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Johnson Criminal Court.--HON. WM. H. H. HILL, Judge.
REVERSED.
S. P. Sparks for appellant.
D. H. McIntyre, Attorney General, for the State.
Chas. E. Lavelle, in September, 1879, filed his affidavit in a justice's court, charging one Holt Davis with willfully disturbing the peace of the family of one William Lavelle. On the trial, before a jury, Davis was acquitted, the jury returning the ordinary verdict of not guilty, without more. Thereupon the justice proceeded to tax the costs of the case against the informant. From this action of the justice of the peace, Lavelle appealed to the criminal court of the county. At the trial term therein, appellant filed petition alleging prejudice of the judge against him, supported by the affidavit of the requisite number of witnesses, and asked for a change of venue. This the court refused. On the hearing of the appeal before the judge, the prosecution read in evidence the transcript of the justice's docket. Defendant offered testimony tending to show that he was a minor twenty years and eleven months old, when the costs were assessed against him. Thereupon the court dismissed the appeal. After an ineffectual motion for a new trial and in arrest, defendant brings the case by appeal to this court.
The first error complained of by the appellant, is the refusal of the judge of the criminal court to grant him a change of venue. The form of the petition was sufficient, and it was accompanied with the requisite affidavits of witnesses. If the application was otherwise conformable to the statute, it was the plain duty of the judge to have ordered an election for special judge. He had no discretion in the matter. But the record in this case does not show that the application of defendant was sworn to. It is in form an affidavit, but there is no jurat attached to it, nor does it otherwise appear that it was sworn to. For aught that appears from the record before us, the judge refused the application because of this defect.
The real question involved in this appeal is, was the justice of the peace authorized, under the facts of the case, in taxing the costs against the party who made the affidavit? The offense charged was a misdemeanor for disturbing the peace of the family, founded on section 26, chapter 205, General Statutes 1865, amended, (see Laws of Missouri 1870, page 46.) The action taken by the justice is sought to be justified under section 5, Laws of Missouri 1874, page 24, which in effect is the same as section 2096, Revised Statutes 1879: “Every person who shall institute any prosecution to recover a fine, penalty or forfeiture, shall be adjudged to pay all costs, if the defendant is acquitted, although he may not be entitled to any part of the same.” And in support of this view we are referred to White v. Walker, 22 Mo. 433. This involved the case of a proceeding against a vagrant, and clearly indicates that the section of the statute above quoted pertains to a special class of prescribed fines, penalties and forfeitures wholly different from the ordinary offenses against public order or public peace denounced in article 7, Wagner's Statutes, page 490.
In 1877, (Laws 1877, p. 281,) the legislature conferred jurisdiction on justices of the peace, concurrent with circuit courts, in all cases of misdemeanors. The offense in question is alleged to have been committed in September, 1879, and the action of the justice complained of occurred on the 9th day...
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City of Greenfield v. Farmer
...been held that it applies only to offenses personal and not public and in cases where the informant is the person injured. [See, State v. Lavelle, 78 Mo. 104; State v. 31 Mo.App. 302.] Attention is called to the concluding clause in section 9344, Revised Statutes 1909, providing: "The city ......
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City of Greenfield v. Farmer
...has been held that it applies only to offenses personal and not public and in cases where the informant is the person injured. See State v. Lavelle, 78 Mo. 104; State v. Huiatt, 31 Mo. App. Attention is called to the concluding clause in section 9344, R. S. 1909, providing: "The city shall ......
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State v. Huiatt
...not strictly of a criminal character and does not apply to this class of cases. Appendix to Kelley's Crim. Law, sec. 279, p. 125; State v. Louelle, 78 Mo. 104. There are three modes of procedure in criminal cases of this class--by indictment, information in the circuit court, and informatio......
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State v. Wood
... ... fixed by some positive statute. No such liability existed at ... common law and the act of filing the complaint or making the ... affidavit on which the prosecution was based in this cause ... created no contractual liability. State v. Lavelle, ... 78 Mo. 104. And such statutes must have been in force at the ... time appellant filed the complaint or made the affidavit ... State v. Berry, 25 Mo. 355; 11 Cyc. p. 270 and note ... 35. (2) Section 4399 relates to the recovery of a fine, ... penalty or forfeiture and has no reference to ... ...