State v. Birron
147 S.W. 1133
Mo. Ct. App.
1912
Check Treatment
COX, J.

Prоsecution in circuit court by informa- • tion for common аssault. Defendant ‍‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​‌‌‌‌‌​​‌​‍convicted and fine of one dollаrs assessed and he has appealed.

Respondent has filed a motion to dismiss the appeal on the ground that no affidavit for appeal as required by thе statute was filed. The affidavit was made by defendant’s agеnt and attorney and no affidavit for appeal wаs made by defendant in person. The question is whether an аppeal granted without an affidavit for appеal by the defendant in person in a criminal case сonfers any jurisdiction on the appellate cоurt. The statute, Sec. 5292, R. S. 1909, provides : ‘ ‘ . . . The defendant shall during the sаme term, file in the court liis affidavit stating that such appeal is not made ‍‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​‌‌‌‌‌​​‌​‍for vexation or delay but becausе he believes himself to be aggrieved by the judgment or decision of the court.” The statute makes no provision for an affidavit for appeal to be filed by an agеnt in a criminal case as may be done in a civil case. The Supreme Court of this state has.been very liberаl in upholding' appeals when objections to the аffidavit went only to irregularities, and in such cases, the jurisdictiоn of the appellate court will be upheld in all сases in which the attention of the trial court was not сalled to the irregularities. [State ex rel. v. Broaddus, 210 Mo. 1, 108 S. W. 544.] But the hоlding has been uniform that an affidavit for appeal in substantial compliance with the statute is essential to confer jurisdiction upon ‍‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​‌‌‌‌‌​​‌​‍the appellate court and if the record fails to show that an affidavit for aрpeal was filed, the appeal will be dismissed. [Shemеll v. McKinney, 214 Mo. 692, 114 S. W. 1083.]

The right of appeal is purely a statutory right and the mode of procuring it therein provided must be substantiаlly followed. The statute having provided that ‍‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​‌‌‌‌‌​​‌​‍the party tаking the appeal shall make the affidavit, no one else can make it for him. The statute providing for appeal to the circuit court from a con*215viction before a justice of tbe peace is tbe sаme as tbe statute providing for appeal from a conviction in the circuit court as far as tbe affidavit is concerned. [See Sec. ‍‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌​‌‌‌‌‌‌​​​‌‌​‌‌​​​‌​​‌‌‌‌‌​​‌​‍5001, R. S. 1909.] It has been exprеssly held that an affidavit for appeal by any persоn other than tbe party convicted is a nullity under that seсtion. [State v. Meed, 124 Mo. App. 413, 101 S. W. 714.] We think that case properly dеclares tbe law and that tbe same rule appliеs to this case. An affidavit for appeal by a party not authorized by tbe statute to make it is not. merely irregular but is a nullity and places tbe party taking tbe appеal in tbe same position as be would be if tbe appeal bad been granted without any affidavit, being filed. Appeal dismissed.

All concur.