State v. Plassard

• Citation: 190 S.W.2d 464
• Decision Date: 16 November 1945
• Docket Number: 6584
• Parties: STATE v. PLASSARD
• Court: Court of Appeal of Missouri (US)

190 S.W.2d 464

STATE v. PLASSARD

No. 6584

Court of Appeals of Missouri, Springfield

November 16, 1945

'Not to be published in State Reports.'

A. R Dunn, Thomas A. Johnson and Leo H. Johnson, all of Neosho for appellant.

OPINION

BLAIR

This is a criminal case and was instituted February 10, 1944, before a Justice of the Peace of Newton County, Missouri, upon the affidavit of Mary Frances Plassard, as follows:

'Frank Plassard in Buffalo Township in said county on February 10th 1944, unlawfully and wilfully and feloniously in the presence of one or more persons to-wit: Alf Niece, Mary Frances Plassard, Henrietta Plassard and Louise Plassard and divers other persons to affiant unknown, exhibit in a rude, angry and threatening manner a certain deadly weapon, towit: a certain fire-arm and rifle loaded with gun powder and leaden balls, against the peace and dignity of the state, etc.'

In the Justice of the Peace Court, appellant was bound over to the Circuit Court of Newton County, Missouri, and the prosecuting attorney of that county filed his information in the Circuit Court of that county, charging the defendant with the same offense charged in the affidavit in the Justice Court.

On October 11, 1944, the defendant was put on his trial in said Circuit Court, upon such information, and the jury found defendant (now appellant) guilty, as charged in the information, and assessed his punishment at a fine of $ 100.

On October 12, 1944, defendant filed his motion for new trial, which was overruled the same day, and the cause was continued until the February, 1945, Term of said Court; and, during the February Term, 1945, of said Court, judgment was entered on said verdict by the judge of said court.

Thereafter, and on the same day, to-wit, February 20, 1945, the defendant was granted an appeal to this Court and his appeal bond was fixed at $ 250. A bill of exceptions was certified by the clerk of said court on August 14, 1945, and the case is thus before us.

The Prosecuting Attorney of Newton County has filed no brief on the merits in this Court and the appellant, in his brief, has confined himself largely to the merits of the case and to the instructions given by the trial judge in the Circuit Court.

We do not find that the appellate jurisdiction of this Court has been properly challenged; but it is the duty of this Court to determine that question for itself, whether properly raised or not. Beechwood v. Joplin-Pittsburg Ry. Co., 173 Mo.App. 371, 158 S.W. 868; Wm. R. Bush Construction Co. v. Withnell, 185 Mo.App. 408, 170 S.W. 361; Cable v. Duke, 208 Mo. 557, 106 S.W. 643.

When this case was called in this Court, the prosecuting attorney of said county, not having filed a brief in this Court, on the merits, agreed with the appellant that appellate jurisdiction is in the Supreme Court of Missouri and not in this Court. The prosecuting attorney of said county has filed in this Court, on December 13, 1945, the following motion:

'Now on this day comes Wayne V. Slankard, Prosecuting Attorney within and for Newton County, Missouri for the respondent and moves the Court that the above cause be transferred from the Springfield Court of Appeals to the Supreme Court of the State of Missouri, for the reason that the defendant was charged and convicted under Section 4423, R.S.Mo.1939 Mo.R.S.A., and his punishment assessed at a fine of $ 100 ...