State v. Buhs,

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Notebook

| Mo. | Mar 15, 1853

HYLAND, Judge,

delivered the opinion of the court.

The defendant was arrested on a warrant issued by a justice ,of the peace for committing an assault and battery. He was *319tried before tbe justice, convicted and fined. He appealed to tbe Criminal Court, and entered into a recognizance as required by tbe statute in such cases. When tbe case was called for trial in tbe Criminal Court, tbe appellant (defendant below) appeared by his counsel, and not in proper person. Tbe circuit attorney required tbe personal appearance of tbe defendant, in order to identify him. He was, thereupon, directed to be called, and failing to appear in any other wise than by attorney, tbe court, on motion of the circuit attorney, affirmed tbe judgment of tbe justice. The defendant, by bis counsel, objected to this judgment of tbe Criminal Court, filed bis bill of exceptions, and brings the case here by writ of error.

1. Was tbe defendant bound to appear in person to prosecute his appeal in this case, in the Criminal Court ? Tbe statute giving jurisdiction in cases of breach of tbe peace, to tbe justices of tbe peace, permits any person convicted under it to appeal. Such person must file an affidavit, stating that be verily believes himself aggrieved by tbe verdict and judgment, and also enter into recognizance, which shall be in tbe form and with tbe condition required in appeals from a justice of tbe peace in civil cases. Tbe recognizance in civil cases does not require tbe party appealing to make his personal appearance in tbe court to which tbe appeal is taken. R. C. 1845, tit. “ Justices’ Courts,” art. 8, sec. 4. In this case, tbe recognizance of Bubs did not require bis personal appearance in tbe Criminal Court of St. Louis county, in order to prosecute bis appeal. It was error, therefore, for that court to affirm tbe judgment of tbe justice of tbe peace, because said appellant failed to appear personally. Tbe judgment of tbe Criminal. Court is therefore reversed, tbe other judges concurring, and tbe cause is remanded.