State v. Rozelle

• Decision Date: 19 May 1903
• Citation: 174 Mo. 632,74 S.W. 852
• Parties: STATE v. ROZELLE.
• Court: Missouri Supreme Court

74 S.W. 852

174 Mo. 632.

STATE v. ROZELLE.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

CRIMINAL LAW—APPEAL BY STATE.

1. Where a demurrer to an information is sustained by the court, the state has no right of appeal.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

An information was filed against Arthur Rozelle for libel, to which a demurrer was sustained, and the state appeals. Certified from the Kansas City Court of Appeals. Appeal dismissed.

Edwin L. Moore, for the State. R. J. Tucker, for respondent.

FOX, J.

On the 16th day of September, 1901, the prosecuting attorney filed an information in the circuit court of Barton county charging respondent with the offense of libel, in that he published in the Leader certain language concerning Arthur Aull. On January 11, 1902, an amended information was duly filed, with leave of court. Respondent filed a demurrer thereto, and the same was sustained by the court, and final judgment was entered, discharging the respondent. The state then duly appealed. The appeal in this case from the Barton county circuit court was taken to the Kansas City Court of Appeals. The Kansas City Court of Appeals dismissed the appeal upon the ground that the state had no right of appeal from the judgment of the Barton county circuit court. One of the judges of the Court of Appeals deeming the decision contrary to the last previous ruling of the Supreme Court, contained in the case of State v. Carpenter, 164 Mo. 588, 65 S. W. 255, in pursuance of the provisions of the Constitution this case was certified to this court for review.

At the very inception of the investigation of the questions involved in this case, we are confronted with the challenge on the part of respondent of the right of the state to prosecute its appeal. If respondent's contention is correct, the controversy in this case is at an end. We find in the case of State v. Beagles (decided at the present term of this court) 74 S. W. 851, a companion case to the one before us. While in that case the state prosecuted its writ of error in the Supreme Court, it will be noted that writs of error are only allowed in cases in which an appeal would lie; hence the discussion of the question in that case, and the conclusion reached, control and will be followed in the case before us.

In the Beagles Case the statute authorizing an appeal by the state is quoted, which is as follows: "When any indictment is quashed or adjudged insufficient upon demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney that there is reasonable ground to believe that the defendant can be convicted of an offense if properly charged 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." Rev. St. 1899, § 2709. Gantt, P. J., in that case, says: "The state is allowed an appeal only in the cases and under the circumstances mentioned in the foregoing section." In further discussing the right of the state to appeal from a judgment quashing an information, or holding it insufficient on demurrer, or arresting a judgment on an information, he says: "In State v. Clipper, 142 Mo. 474, 44 S. W. 264, and State v. Carr, 142 Mo. 607, 44 S. W. 776, and State v. Cornelius, 143 Mo. 180, 44 S. W. 717, and State v. Van Brunt, 147 Mo. 20, 47 S. W. 787, it was ruled by this court that the right of appeal given to the state was limited to the quashing of...