212 Mo. 244 | Mo. | 1908
— This is an appeal from the judgment of the circuit court of Harrison county, by which defendant was fined $300, upon a conviction of selling whiskey in violation of the Local Option Law. The appeal was taken to the Kansas City Court of Appeals, and has been transferred to this court by the
It is a well-established rule in respect to demurrers that where, after demurrer is overruled, the defendant files answer or pleads over, the demurrer is deemed to be waived. [Pickering v. Mississippi Valley Nat. Tel. Co., 47 Mo. 457.]
In Fuggle v. Hobbs, 42 Mo. l. c. 541, where the defendant complained of the striking out of an amended answer, Wagner, J., said: “If the appellant intended to avail himself of the errors committed by the court in this respect, he should have let judgment go at the time and stood on his exceptions. By pleading over and going to trial on another issue, he voluntarily abandoned whatever grounds he might have had for a review of the action of the court. The judgment appealed from is a judgment rendered upon the issue tendered by the last answer,” etc. [West v. McMullen, 112 Mo. l. c. 409; Scovill v. Glasner, 79 Mo. 449.] If the demurrer, on the other hand, had been sustained, “there was no manner of necessity for a bill of exceptions in order to preserve the demurrer, as it is a part of the record, and ‘would keep’ without resort to any such preservatory process. ” [Spears v. Bond, 79 Mo. l. c. 469.]
In regard to the exception taken to the overruling of the demurrer, it was said in Newton v. Newton, 162 Mo. l. c. 182, “An exception in such case neither helps nor hurts, as a demurrer will keep without an exception.” [Hannah v. Hannah, 109 Mo. 236; Thorp v. Miller, 137 Mo. l. c. 239.]
Does the right “to demand the nature and cause of the accusation,” secured by the Constitution (sec. 22, art. 2) imply that every person charged with crime,1 in this State, whether the offense be a felony or a misdemeanor, can require this court to pass upon the sufficiency of the indictment or information lodged against
2d. The other ground is that the Local Option statute contravenes section 53 of article 4 of the Constitution. It will be noted that said section points out thirty-three different cases in which special and local laws are prohibited, but this ground of demurrer does not specify which of said paragraphs the Local Option Law is supposed to contravene. Demurrers are required to specify the grounds of objection to a pleading or indictment, and this demurrer, even if not waived by pleading over, is utterly insufficient to give this court jurisdiction of this appeal. In Ash v. Independence, 169 Mo. 77, it was ruled that a party desiring to invoke the protection of the Constitution must point out the section which he claims has been violated and it was not sufficient to merely allege that certain tax bills “were unconstitutional and void.” So in this case; to