State v. Sparks
| Decision Date | 01 May 1914 |
| Docket Number | No. 1189.,1189. |
| Parties | STATE v. SPARKS. |
| Court | Missouri Court of Appeals |
The Court of Appeals must determine the question of its jurisdiction on appeal, though the prosecuting attorney and accused's counsel both request the transfer of the case to the Supreme Court.
2. CRIMINAL LAW (§ 1019)—JURISDICTION— APPEALS IN CRIMINAL CASES.
Where an indictment for a felony includes a misdemeanor, the grade of the offense of which accused is convicted determines whether an appeal is within the jurisdiction of the Court of Appeals as a misdemeanor case, or within that of the Supreme Court as a felony.
3. CRIMINAL LAW (§ 1020)—JURISDICTION—APPEALS IN CRIMINAL CASES.
One charged with a violation of Rev. St. 1909, § 4382, by breaking the lawful custody of an officer having him in charge before conviction for grand larceny, is charged with a felony, and the jurisdiction of an appeal from a conviction, followed by a sentence of six months in the county jail, is in the Supreme Court.
Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.
Asa Sparks was convicted of crime, and he appeals. Case transferred to the Supreme Court.
Wm. M. Morgan and J. W. Caldwell, both of Marble Hill, for appellant. Homer F. Williams, Pros. Atty., of Marble Hill, for the State.
The defendant was granted an appeal to this court from a judgment of conviction under an indictment based on section 4382, R. S. 1909, charging him with breaking the lawful custody of an officer having him in charge, before conviction, for violation of a penal statute. The criminal charge under which defendant was arrested and was being held for trial at the time he is now charged with breaking the lawful custody of the sheriff of Bollinger county, Mo., is that of grand larceny. The defendant was convicted and sentenced to six months in the county jail.
The prosecuting attorney has filed a motion in this court to have the cause transferred to the Supreme Court, on the ground of our lack of jurisdiction of this appeal. The attorneys for defendant consent to this motion, but we must nevertheless inquire into the question of jurisdiction, as such question is in no wise determined by consent.
It will readily be seen that the offense with which defendant is charged is a felony; i. e., one for which the defendant may be punished by a penitentiary sentence. Under the decision of the Supreme Court in State v. Woodson, 248 Mo. 705, 154 S. W. 705, there seems to be an impression that the question to what court the appeal shall be granted is dependent on the result of the trial, rather than the nature of the offense charged. This is true only to a limited extent. The Woodson Case in no manner overrules the long line of cases holding that, where the offense charged is a felony, and the defendant is convicted of such felony, it remains a felony for the purposes of an appeal, although the punishment assessed is a fine or jail sentence. State ex rel. v. Foster, 187 Mo. 590, 603, 86 S. W. 245; State v. Melton, 117 Mo. 618, 23 S. W. 889; State v. Melton, 53 Mo. App. 646; State v. Herrick, 158 Mo. App. 487, 139 S. W. 258; State v. Zinn, 141 Mo. 329, 42 S. W. 938; State v. Gilmore, 28 Mo. App. 561. In the ...
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State v. Sparks
...Bollinger County; Peter H. Huck, Judge. Asa Sparks was convicted of crime, and he appealed to the Court of Appeals, and it (180 Mo. App. 495, 166 S. W. 642) transferred the cause to the Supreme Court. Defendant was convicted in the circuit court of Bollinger county on September 10, 1913, of......