Thomas v. State

• Decision Date: 31 July 1846
• Citation: Thomas v. State, 10 Mo. 235 (Mo. 1846)
• Parties: AMOS THOMAS v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

10 Mo. 235

AMOS THOMAS

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM CHARITON CIRCUIT COURT.

CLARK, for Appellant, cited: Rev. Stat. 1835, p. 374;4 Mo. R. 28,Jones v. Davis.

STRINGFELLOW, Attorney-General, for State. 1st.The affidavit and recognizance of the defendant, made before the justice, are insufficient: SeeRev. Code, 1835. 2nd.The appeal was not taken and perfected on the day on which judgment was rendered.Cox v. State, 9 Mo. R. 181. 3rd.The Circuit Court had no power to permit a new recognizance and affidavit to be filed in that court.Cox v. State, 9 Mo. R. 181;Rev. Stat. 1835.

MCBRIDE, J.

This was a prosecution commenced before a justice of the peace in Chariton county, on the 8th October, 1844, against the defendant for an assault and battery, committed on the person of one Humphrey Adams.A trial was had on the 10th of the month before a jury, when the defendant was found guilty, and a fine of $50 was assessed against him, on which the justice rendered judgment.On the same day the defendant asked for an appeal to the Circuit Court, and tendered his bond, which being adjudged insufficient by the justice, was rejected.On the next day the defendant tendered another bond, which being approved of by the justice, an appeal was granted to the Circuit Court.In the Circuit Court, at the May term, 1845, the circuit-attorney filed his motion for an affirmance of the judgment of the justice for the reason (among others), “because the appeal was not taken and perfected on the day of the rendition of the judgment by the justice.”Before a disposition of the motion, the defendant filed an affidavit and motion, praying for a rule against the justice, to show cause why he should not amend his return, in conformity with the facts, as they occurred on the trial.The statement in the affidavit is, that on the day of the trial before the justice, and after the rejection of the first recognizance bond offered by ...