State v. Ross
| Decision Date | 08 May 1906 |
| Citation | 94 S.W. 842,119 Mo.App. 401 |
| Parties | STATE OF MISSOURI, Appellant, v. ROSS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Greene Criminal Court.--Hon. Jas. J. Gideon, Judge.
DISMISSED.
STATEMENT.--This is a proceeding by information charging the commission of three several misdemeanors in three several counts. In the first count, it is charged that defendant did, on July 12 1903, "said day being the first day of the week commonly called Sunday, . . . . willfully and unlawfully expose to sale certain goods, wares and merchandise, to-wit soda-water," etc. In the second count, it is charged that the defendant did on said 12th day of July, 1903 "said day being the first day of the week and commonly called Sunday, . . . willfully and unlawfully expose to sale certain goods, wares and merchandise, to-wit: ice cream," etc. In the third count, it is charged that the defendant did, on said 12th day of July, 1903, "said day being the first day of the week, commonly called Sunday . willfully and unlawfully expose to sale certain goods, wares and merchandise, to-wit: cigars and tobacco," etc. All of which was alleged to have occurred in Greene county.
Defendant interposed a demurrer to the information for numerous reasons specified therein, which are unimportant at this time, inasmuch as they will not be further noticed.
The trial court sustained the demurrer to the first and second counts and overruled the same as to the third count. The State, after proper preliminary steps, perfected its appeal.
Appeal dismissed.
Roscoe Patterson for appellant.
P. T. Allen, A. H. Wear and T. J. Delaney for respondent.
NORTONI, J. (after stating the facts).
There are no assignments of error before the court nor briefs filed on behalf of either party to the record. Notwithstanding this fact, however, under the provisions of section 2716, R. S. 1899, it becomes the duty of the court "to proceed without delay and render judgment upon the record." The statutory mandate proceeds, of course, upon the theory that the court has jurisdiction of the cause, for without such, there is no power to determine or "to render judgment upon the record," and therefore the question of the jurisdiction of the court, lying at the very threshold of the case, it is important, first, to inquire in that behalf and ascertain whether we have power to adjudicate the questions raised by the demurrer.
From an examination of the record, it appears that the appeal is by the State from the judgment of the court below in sustaining the demurrer to the first and second counts of the information charging the defendant with the commission of certain misdemeanors. Now, at common law, there was no remedy by appeal, and it exists in our law to-day only by virtue of the statutes. About the year 1840, in State v Spear, 6 Mo. 644, Judge TOMPKINS expressed doubt as to whether or not the general statute then in force on the question of appeals in criminal cases, conferred the right of appeal on the State, and this expression no doubt brought about the enactment of our present statute on the subject. It is provided in that enactment as follows: "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." [Section 2708, R. S. 1899.] The next succeeding section referred to is section 2709, R. S. 1899. It designates three instances, and three only, in which it is competent for the State to appeal in criminal cases. These are, first: "when an indictment is quashed:" second, (when an indictment is) "adjudged insufficient upon demurrer" or third, "when judgment thereon (i. e., indictment) is arrested." This statute has been given a strict construction in numerous cases and the right of the State to appeal uniformly denied except in instances falling strictly within the cases and circumstances specified therein. For instance, in a case where the defendant was discharged on motion in arrest because at the time of the commission of the offense, the defendant was a slave, and as such, was not liable to punishment, the State's appeal was denied on the ground that the motion in arrest was not levelled or sustained against the sufficiency of the indictment. [State v. Bollinger, 69 Mo. 577.] In a case where the indictment was held insufficient on motion made ore tenus at the trial, the State's appeal was denied on the ground that even though the indictment was insufficient, it was not subject to attack by objection ore tenus to the introduction of evidence and therefore it was neither quashed nor held insufficient on demurrer within the contemplation of the statute. [State v. Risley, 72 Mo. 609.] Where the defendant was discharged on a plea in...
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