State v. McKay

• Decision Date: 12 February 1910
• Citation: 125 S.W. 478,225 Mo. 540
• Parties: STATE v. McKAY.
• Court: Missouri Supreme Court

125 S.W. 478

225 Mo. 540

STATE v. McKAY.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. CRIMINAL LAW (§ 1005) — APPEAL — JUDGMENTS APPEALABLE — JUDGMENTS QUASHING INFORMATION.

Rev. St. 1899, § 2709 (Ann. St. 1906, p. 1593) as amended by Laws 1909, p. 461, authorizing an appeal by the state from a judgment quashing an information, does not authorize an appeal from such a judgment granted before the amendment became effective.

2. CRIMINAL LAW (§ 1090) — APPEAL — REVIEW — PRESERVATION OF GROUNDS — BILL OF EXCEPTIONS.

Where there was no bill of exceptions preserving exceptions to an order sustaining a motion to quash the information, error in the order cannot be reviewed.

3. CRIMINAL LAW (§ 1063) — APPEAL — MOTION FOR NEW TRIAL — NECESSITY.

Where the record does not contain a motion for new trial directing the court's attention to alleged error in granting a motion to quash the information, error in quashing it cannot be reviewed.

Appeal from Circuit Court, Marion County; David H. Eby, Judge.

Luther McKay was charged upon information with embezzlement as county clerk. From an order sustaining a motion to quash the information and discharge accused, the State appeals. Appeal dismissed.

This cause is brought to this court by appeal on the part of the state from an order sustaining a motion to quash an information which had been filed in this cause, and discharging the defendant. At the September, 1908, term of the circuit court of Marion county, Eugene W. Nelson, prosecuting attorney, filed an information charging defendant with having embezzled certain public moneys intrusted to his care in his official capacity as county clerk of Marion county. The defendant was arrested, arraigned, and pleaded not guilty. Subsequently by leave of court the plea of not guilty was withdrawn, and a motion to quash the information filed, which the court sustained, and entered a judgment quashing the information and discharging the defendant. From this judgment on February 8, 1909, the state, through its prosecuting officer, appealed to this court. No bill of exceptions preserving the action of the court upon the motion to quash the information was filed by the state. This sufficiently presents the record in this cause.

E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State. Ben F. Glahn, for respondent.

FOX, J. (after stating the facts as above).

1. Under the law of this state at the time it was sought by the state to appeal from the judgment in this cause, there was no right of appeal on the part of the state from an order and judgment quashing an information. This is conceded by the learned Attorney General, wherein, with commendable frankness, he admits that this case comes within the rule laid down in the case of State v. Hayes, 220 Mo. 1, 119 S. W. 399, and cases cited. While it is true that section 2709, Rev. St. 1899 (Ann. St. 1906, p. 1593), as amended by the act of the Legislature approved May 14, 1909 (Laws Mo. 1909, pp. 461, 462), changed the statute so as to give the state the right of appeal from a judgment quashing an information, yet manifestly that amended statute has no application to this case, for the reason that this appeal was taken and granted on the 8th day of February, 1909, and the amendatory act was not passed nor approved until May 14, 1909; hence it necessarily follows that the amendatory act could not give this court jurisdiction of that appeal.

2. Even if it should be conceded that this court had jurisdiction of the appeal, no bill of exceptions was filed by which the exceptions to the action of the trial court in sustaining the motion to quash the information were preserved; hence it follows that there is nothing before this court for...