State v. Ulmer
| Decision Date | 13 November 1961 |
| Docket Number | Nos. 48638-48641,No. 1,s. 48638-48641,1 |
| Citation | 351 S.W.2d 7 |
| Parties | STATE of Missouri, Appellant, v. Lester ULMER, Respondent. STATE of Missouri, Appellant, v. Verne WILDER, Respondent. STATE of Missouri, Appellant, v. Harry HUNT, Respondent. STATE of Missouri, Appellant, v. Guy ENGLISH, Respondent, |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Fred E. Schoenlaub, Sp. Asst. Atty. Gen., for appellant.
Roy Coyne, Joplin, for respondents, Verne Wilder, Harry Hunt and Guy English.
A. L. Shortridge, Joplin, for respondent, Lester Ulmer.
COIL, Commissioner.
The four above-styled cases have been consolidated on appeal. The facts and the decisive question in each are the same. We shall write this opinion as though there was one case involving one defendant.
On January 10, 1960, an indictment was returned charging defendant with setting up and keeping a gambling table for the purpose of operating a dice game. On April 22, 1960, the trial court sustained defendant's motion to quash that indictment and ordered defendant's discharge. On June 20, 1960, an information was filed denominated in the record as 'in lieu of indictment' against the same defendant purporting to charge him with the same offense as that charged in the prior indictment. Defendant moved to dismiss and quash that information on these grounds: (1) that it did not state on offense under the laws of this state; (2) that it could not be a substitute for a prior indictment because not filed before the expiration of the term of court at which the prior indictment had been quashed; and (3) that there had been no preliminary hearing upon the charge purportedly set forth in the information and, consequently, the information was invalid and the trial court had no jurisdiction to proceed with the trial.
At a hearing on the motion, the prosecuting attorney stipulated that the defendant had never had a preliminary hearing before a magistrate on the charge set forth in the information. The trial court took judicial notice of the commencement and the end of the terms of the Circuit Court of Jasper County and judicial notice of its own docket sheet.
It was the position of the prosecuting attorney that the information, filed June 20, 1960, was one filed in lieu of the original indictment and, consequently, that no preliminary hearing was necessary prior to the filing of the information.
It appears upon the record before us that on November 23, 1960, the trial court filed a memorandum opinion in which it held that the information in question was sufficient in that as amended it sufficiently charged an offense, but that the court was without jurisdiction to proceed with the trial because it appeared that the information was not timely filed in that it was filed after the end of the term at which the preceding indictment had been quashed and, consequently, the judgment of discharge charge in that case had become final and no valid information 'in lieu of indictment' thereafter could have been filed; and further, that the information considered as an original one, i. e., not in lieu of an indictment, was invalid because no preliminary hearing had been accorded the defendant. The trial court's conclusion was that it had no jurisdiction to proceed with the case and ordered and adjudged that the 'information filed in lieu of indictment' be quashed, that the cause be dismissed, and that the defendant be discharged and 'go hence hereof without day and recover his costs herein expended.'
The state purported to appeal from that judgment and has filed a brief here on the merits, contending that the expiration of the term in which an indictment is quashed does not deprive the circuit court of jurisdiction over the felony charged or of the person named once a new information or indictment has been filed; and that the purpose of a preliminary hearing is served by the return of an indictment after which the prosecuting attorney may file an information charging the same felony as that charged in the indictment.
The respondent contends first that this court is without jurisdiction to review this case on the merits because the state could not appeal from the judgment entered. While we do not have the views of the state with respect to respondent's contention, we, nevertheless, are of the view that it must be sustained.
Supreme Court Rule 28.04, V.A.M.R., provides:
'The state shall be entitled to take an appeal in the following cases and in no others:
'(a) when, prior to judgment, upon motion or upon the court's own view, it is adjudged that an indictment or information is insufficient;
'(b) when a judgment is arrested or set aside.'
Section 547.210 RSMo 1959 and V.A.M.S., which Rule...
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...State v. Marshall, 124 Mo. 483, 27 S.W. 1107; State v. Bright, Mo.App., 263 S.W. 559; State v. Hunter, Mo.App., 198 S.W.2d 544; State v. Ulmer, Mo., 351 S.W.2d 7. Those provisions are contained in Secs. 547.200 and 547.210, RSMo 1959, V.A.M.S., and in Crim. Rule 28.04, V.A.M.R. which is as ......
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...specific authority is granted. State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782; State v. Craig, 223 Mo. 201, 122 S.W. 1006; State v. Ulmer, Mo., 351 S.W.2d 7. Such provisions are found in Sections 547.200 and 547.210, V.A.M.S., and, as stated, Criminal Rule 28.04, V.A.M.R.: 'The state shall......
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...of accusation' and dismissal on other grounds not appearing within the four corners of the indictment or information itself. In State v. Ulmer, Mo., 351 S.W.2d 7, the court stated that the term 'insufficiency of information' as used in the statute and Rule refers to 'insufficiency of accusa......
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...circuit court is not appealable and this court is without jurisdiction to entertain this appeal tendered by the state. State v. Ulmer, 351 S.W.2d 7, 10(2) (Mo.1961). Accordingly, the appeal is BILLINGS, C.J., and HOGAN, TITUS and FLANIGAN, JJ., concur. ...