223 Mo. 201 | Mo. | 1909
On November 2, 1908, an indictment was returned by the special grand jury for Jasper county to Division No. One of the circuit thereof, then presided over by Hon. Haywood Scott, charging defendant with the crime of setting up and keeping “one poker table,” in violation of the statutes of this State.
The indictment is in regular form and is duly signed by the prosecuting attorney of Jasper county and the foreman of the grand jury returned the same.
On January 9th thereafter, defendant filed his plea in abatement to said indictment, giving as a rea
On January 15th thereafter, the prosecuting attorney of said county filed a demurrer to said plea in abatement.
On January 23, 1909, said plea in abatement and demurrer thereto came on for hearing in said Division No. One, then presided over by Hon. Henry L. Bright. The court overruled the demurrer to the plea in abatement and sustained the plea to the indictment and discharged defendant. The State, through its prosecuting attorney, refused to plead further, duly saved an exception to the ruling- of the court in overruling the demurrer to the plea, and in sustaining the plea in abatement to the indictment, and appeals to this, court for a review as to the correctness of the ruling of the trial court in overruling the demurrer to the plea and sustaining the plea to the indictment.
The indictment, plea in abatement and demurrer to the plea are all set out at length in the record.
I. This is one of the number of appeals from the Jasper Circuit, in all of which the right of the State to appeal from a judgment overruling a demurrer by the State to a plea in abatement of an indictment based upon matters dehors the face of the indictment itself, is challenged, and of course the first proposition is whether this court can entertain the appeal.
As a general rule the State has no right to a writ of error or to an appeal in a criminal prosecution, from a judgment in favor of a defendant, whether upon a verdict of acquittal or upon the determination by the court of a question of law, unless it be expressly con
As early as tbe State v. Rowe, 22 Mo. 328 (1855), tbis identical proposition was before this court for decision. In that case tbe defendant was indicted for taking unlawful toll. He appeared and filed bis special plea. Tbe State demurred to tbis plea and tbe circuit court overruled tbe demurrer and rendered judgment thereon for defendant, discharging him from said indictment, and tbe State appealed. Tbe only question was, would an appeal be sustained on tbe part of tbe State upon that state of facts? Judge Ryland, speaking for tbe whole court, said: ‘ ‘ Tbe statute concerning practice and proceedings in criminal cases must determine tbis question. Sections 9 and 10 of tbe 8th article of tbis act, are as follows: ‘ Section 9. Tbe State, in any criminal prosecution, shall be allowed an appeal only in tbe cases and under tbe circumstances mentioned in tbe next succeeding section. Section 10. When any indictment is quashed or adjudged insufficient upon demurrer, or judgment is arrested, tbe circuit court, either from its own knowledge or from information given by tbe prosecuting attorney, may cause tbe defendant to be committed or recognized to answer another indictment; or, if tbe prosecuting attorney prays an appeal to tbe Supreme Court, tbe circuit court, may in its discretion, grant an appeal.’ Now tbis case is not within either of tbe classes mentioned in tbis 10th section. There is no indictment quashed, nor is there any arrest of judgment, nor has tbis indictment been held insufficient on demurrer. Then, by tbe express words of tbe 9th section, an appeal will not be allowed. It is accordingly dismissed. ’ ’ Sections 2708 and 2700, Revised Statutes 1899, are to-day to all intents and purposes reproductions and continuations of sections 9 and 10 of article 8 of tbe Code of Criminal Practice and Proceedings of tbe Revised Statutes of 1845, p. 889.
The adjudications of other states with statutory-provisions like ours just quoted are to the same effect [State v. Minnick, 33 Ore. 158; People v. Snyder, 44 Hun 193; People v. Dempsey, 66 How. Prac. 371.]
It being obvious in this case that the indictment, was not quashed on a motion to quash, nor was a demurrer thereto sustained, nor has the indictment been, adjudged insufficient on a motion in arrest and as an appeal is only permitted the State in these cases, the motion to dismiss the appeal must be sustained and it is so ordered.