State v. Nece

• Decision Date: 23 February 1923
• Docket Number: No. 23263.,23263.
• Parties: STATE v. NECE
• Court: Missouri Supreme Court

248 S.W. 963

STATE v. NECE

No. 23263.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge.

Jack Nece was convicted of violating the motor vehicle laws, and appeals. Transferred to Court of Appeals.

Jesse W. Barrett, Atty. Gen., and Henry Davis and R. W. Otto, Asst. Attys. Gen., for the State.

HIGBEE, C.

The information charges that the defendant, on December 3, 1921, operated an inclosed automobile on a public highway in the city of St. Louis, so constructed and equipped that a hand and arm signal could not be given or seen from the rear, etc. The information is based on section 21, par. k, concerning motor vehicles. Laws (Extra Session) 1921, p. 76, l. c. 94. The defendant filed a motion to quash the information because the "statute is in violation of section 4, article 2," and other enumerated sections of the Constitution. The motion being overruled, the cause went to trial, the defendant was guilty, and his punishment assessed at a fine of $100, from which he appealed to this court. The defendant renewed and kept his objections alive throughout the trial and in his motion for new trial and in arrest. In State v. Goad (Mo. Sup.) 246 S. W. 917, Walker, J., said:

"Supplementary to the fact that the contention has not been preserved, we held in Bealmer v. Insurance Co. (281 Mo. 495), in defining the manner in which this question should be raised to entitle it to consideration, that the mere assertion, as here, that the state statute is in conflict with certain numbered sections of the Constitution, without a statement of their nature or the facts which create the conflict, will not confer jurisdiction. To a like effect is the ruling in state v. Swift & Co. (270 Mo. 694); Can. Pack. Co. v. Evans (238 Mo. 599); State v. Christopher (212 Mo. 244); Chapman v. Adams (230 S. W. [Mo.] l. c. 81)."

See, also, State ex rel. v. Tibbe Electric Co., 250 Mo. 522, 527, 157 S. W. 635; Excelsior Springs, to Use of McCormick v. Ettenson, 188 Mo. 129, 132, 86 S. W. 255; and State v. Virgil Hale (not yet [officially] reported) 248. S. W. 958.

The constitutional questions not having been raised so as to entitle them to consideration and the conviction being for a misdemeanor, this court is without appellate jurisdiction.

The cause is accordingly transferred to the St. Louis Court of Appeals.

RAILEY and DAVIS, CC., concur.

PER CURIAM.

The foregoing opinion of HIGBEE, C., is...