State v. Koerner

51 Mo. 174 | Mo. | 1872

Adams, Judge,

delivered the opinion of the Court.

This was an indictment for selling liquor as a dramshop keeper without license. The defendant was tried before a jury and a verdict of guilty found.

He put in no plea and none was entered for him.

A motion in arrest of judgment was filed and entertained and an order discharging the prisoner entered.

The motion in arrest was properly sustained. The statute re quires the Court to enter a plea of not guilty when the defendant fails to do so. The trial without entering the plea, was error for which the verdict might to have been set aside, and a new trial granted. (Maeder vs. The State, 11 Mo., 363; The State vs. Andrews, 27 Mo., 267.)

On sustaining the motion in arrest of judgment the court had no right in this sort of case to enter a judgment discharging the prisoner. When an indictment is good and a motion in arrest is sustained because the verdict is wrong, the proper judgment is to arrest the judgment on the verdict and set it aside and order another trial on the indictment.

The judgment is reversed and the case remanded to be proceeded in as herein directed.

Judge Wagner concurs. Judge Bliss absent.