State v. Herman

20 Mo. App. 548 | Mo. Ct. App. | 1886

Ellison, J.

The evidence as shown by the record in this cause, was that defendant demanded an appeal immediately upon his first conviction on the twenty-ninth. That he was thereupon arrested on a second charge of the same kind and the case continued till the next day, the thirtieth, when he was again tried and convicted, the trial lasting till ten o’clock at night. Immediately upon this second conviction, and at this hour in the night, he was again arrested and the canse was continued till next dgy the thirty-first, when he was again convicted and again he demanded an appeal,' this time on all three cases. The justice allowed the appeal on the last conviction, but refused it on the first two. It does not appear that defendant demanded an appeal on his second conviction, which was had late at night, until next day. We think the rule should have been granted by the circuit court, as to the second conviction. On the first conviction defendant demanded his appeal, but presenting no affidavit or bond. It becomes the duty of the justice on request of defendant to make out for him his affidavit and recognizance. Section 3044, Hev. Stat. But defendant made no such request, and there is nothing to show he might not reasonably have taken his appeal in the following twenty-four hours. He was discharged on his own recognizance. His final demand on the second day after his conviction, which was refused by the justice, thereby doing away with the necessity of tendering bond and affidavit, was too late unless some reason appeared to excuse the delay. The conviction in the second case, as has been stated, was late at night and defendant was immediately placed under arrest on another charge of the same nature. Under such circumstances we think his demand for an appeal next day, immediately after his third and last trial, in time, and it should have been granted. Section 2058, Bevised Statutes, requires an appeal in such cases to be taken immediately after conviction, but it “will not be so literally construed as to have the effect of denying to defendant the right of appeal.” State v. Anderson, 84 Mo. 524.

The judgment will be reversed and the cause remanded.

The other judges concur.