State v. Risley

• Decision Date: 31 October 1880
• Parties: THE STATE, Appellant, v. RISLEY.
• Court: Missouri Supreme Court

72 Mo. 609

THE STATE, Appellant,

v.RISLEY.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

APPEAL DISMISSED.

The defendant was indicted for obstructing a public road. The indictment charged that the defendant “on, etc., at, etc., did unlawfully, willfully and knowingly obstruct a certain public road leading from the village of Dawn, west and north toward the village of Mooresville, and near where said road runs along the western line of one J. J. Bolliver's land in section 1, township 56, range 25, by building and erecting two fences in and across said road, to the great hindrance and inconvenience of the citizens of this State, and against,” etc. The defendant pleaded “not guilty,” and a trial being proceeded with, the defendant, when the first witness for the State was called to the stand and before he had given any evidence, “objected to the introduction of any evidence whatever for the reason that the indictment does not state facts sufficient to maintain a judgment of conviction.” The court sustained this objection, and the State having excepted to this ruling and elected to stand on the indictment, judgment was rendered “that said indictment be held as insufficient, and that defendant recover his costs,” etc. The State appealed.J. L. Smith, Attorney-General, for the State.

SHERWOOD, C. J.

The indictment is undoubtedly sufficient. The only point for discussion is, whether the State, in the circumstances of this case, is allowed an appeal. The statute provides: “The State, in any criminal prosecution, shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding section.” “When any indictment is quashed or adjudged insufficient on demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, * * may cause the defendant to be committed or recognized to answer a new indictment, or if the prosecuting attorney prays an appeal to the Supreme Court, the court may, in its discretion, grant an appeal.” R. S. 1879, §§ 1985, 1986. This statutory provision came before us for adjudication in State v. Bollinger, 69 Mo. 577, where it was held that the State was allowed an appeal only in the cases mentioned in section 1986-- NORTON, J., who delivered the opinion of the court, remarking: “We think it clear that under the above sections the right of the State to prosecute an appeal is limited to those cases where the indictment has been adjudged to be insufficient, either on motion to quash, on demurrer, or motion in arrest of judgment, because of defective indictment.” This ruling was in entire accord with the familiar rule, too familiar by far to require citation of authorities in its support, that statutory exceptions are to be strictly construed. As the instances when the State...