State v. Adams

80 Mo. App. 293 | Mo. Ct. App. | 1899

BOND, J.

The defendants appealed from a conviction upon an information charging them with disturbing “an assembly of people, met together for a lawful purpose, to wit: A Christmas tree entertainment at a certain schoolhouse set ' apart for such entertainment,” and concluding in the words of the statute. After a conviction in the justice’s court to which the case was taken by change of venue, the defendants appealed to the circuit court, where they were again convicted, from which judgment they appealed to this court.

Presumption. It is insisted that the information should have been •quashed because based upon an insufficient affidavit. The record shows that the case was tried upon an amended information, which together with an amended affidavit were both filed at the same time before the justice. The record does not show the order of sequence in which these two papers were filed. As they were filed together, the presumption must be indulged that the amended information succeeded the amended affidavit upon which its context shows it was based. "The defendants do not claim that the amended affidavit is defective, hence there is no merit in the point under review.

Presumption. It is next insisted that the defendants were not shown by the record to have been personally present during the whole of the trial. The record shows affirmatively that they were present in the circuit court and arraigned and entered a plea of not guilty, and while it is silent as to their subsequent personal presence, it does not show that their attorneys were present and excepted to the instructions given by the court. As the charge in question is a mere misdemeanor, it will be presumed that the personal presence of the defendants once shown continiied during the remainder of the proceedings, or that they were absent by tbe consent of tbe court and prosecuting attorney. R. S. 1889, sec. 4191.

Finally it is urged that* there was no evidence that the assembly disturbed was lawfully met. This was charged to be a.fact in express terms in the information and was proven by uncontradicted testimony tending to show that the meeting in question was lawfully assembled at the schoolhouse by the consent and presence of two of the directors of the school distrist, and that it engaged in the Christmas celebration consisting of “plays, songs, and speeches by the little folks.” There was clearly no error in the instructions of the court telling the jury that the disturbance of an assembly so met together and for such objects was within the statute upon which the information was based. The evidence in this case shows gross misconduct on the part of the defendants. The judgment is affirmed.

All concur.