State v. Risley

Decision Date31 October 1880
Citation72 Mo. 609
PartiesTHE STATE, Appellant, v. RISLEY.
CourtMissouri Supreme Court

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...

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27 cases
  • The State v. Meysenburg
    • United States
    • Missouri Supreme Court
    • December 16, 1902
    ... ... counsel's motion was, in legal effect, only an objection ... ore tenus to the introduction of evidence; and this can not ... be done, but a motion to quash or demur must be resorted to ... State v. Meyers, 99 Mo. 107; State v ... Risley, 72 Mo. 609. So that the sufficiency of the ... indictment in matters of substance, and not form, is the ... present inquiry. While the averments of the indictment are ... not jointed as smoothly as the critical and artistic sense of ... counsel for defense would prefer, yet we insist that it ... ...
  • State v. Burgdoerfer
    • United States
    • Missouri Supreme Court
    • November 16, 1891
    ... ... substance or in form. It is the settled rule in criminal ... cases, that an appeal can be taken by the state only where it ... is allowed by statute. State v. Copeland, 65 Mo ... 479; State v. Bollinger, 69 Mo. 577; State v ... Risley, 72 Mo. 609. The same rule governs writs of ... error. State v. Heisserer, 83 Mo. 692. (3) Under ... Revised Statutes, sections 4289, 4290, 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 ... ...
  • Morris v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 17, 1908
    ...States, 85 C.C.A. . . . , 160 F. 584; United States v. Harmon (D.C.) 45 F. 419; 1 Wharton, Crim. Law (7th Ed.) 519, 524, 525; State v. Risley, 72 Mo. 609. The questions raised in the motion in arrest of judgment touching the sufficiency of the indictment are, (1) that the indictment does no......
  • The State v. Duncan
    • United States
    • Missouri Supreme Court
    • May 30, 1893
    ...motion in arrest, and even were it not thus free from flaw, objection could not be taken to it, as was here attempted, ore tenus. State v. Risley, 72 Mo. 609; State Meyers, 99 Mo. 107, 12 S.W. 516. For this reason the objection made by the defendant to the introduction of any evidence becau......
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