119 Mo. App. 401 | Mo. Ct. App. | 1906
(after stating- the facts). — There are no assignments of error before the court nor briefs filed on behalf of either party to the record. Notwithstanding this fact, however, under the provisions of section 2716, R. S. 1899, it becomes the duty of the court “to proceed without delay and render judgment upon the record.” The statutory mandate proceeds, of course, upon the theory that the court has jurisdiction of the cause, for without such, there is no power to determine or “to render judgment upon the record,” and therefore the ques
From an examination of the record, it appears that the appeal is by the State from the judgment of the court below in sustaining the demurrer to the first and second counts of the information charging the defendant with the commission of certain misdemeanors. Now, at common law, there was no remedy by appeal, and it exists in our law to-day only by virtue of the statutes. About the year 1840, in State v. Spear, 6 Mo. 644, Judge Tompkins expressed doubt as to whether or not the general statute then in force on the question of appeals in criminal cases, conferred the right of appeal on the State, and this expression no doubt brought about the enactment of our present statute on the subject. It is provided in that enactment as follows: “The State, in any criminal prosecution, shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding section.” [Section 2708, R. S. 1899.] The next succeeding section referred to is section 2709, R. S. 1899. It designates three instances, and three only, in which it is competent for the State to appeal in criminal cases. These are, first: “when an indictment is quashedsecond, (when an indictment is) “adjudged insufficient upon demurrer” or third, “when judgment thereon (i. e., indictment) is arrested.” This statute has been given a strict construction in numerous cases and the right of the State to appeal uniformly denied except in instances falling strictly within the cases and circumstances specified therein. For instance, in a case where the defendant was discharged on motion in arrest because at the time of the commission of the offense, the defendant was a slave, and as such, was not liable to punishment, the State’s appeal was denied on the ground that the motion in arrest was not levelled or sustained against the suf
Following up this line of adjudications, our Supreme Court has recently decided that notwithstanding Our Constitutional amendment and statutes authorizing the prosecution of felonies, by information, no appeal lies on behalf of the State from a judgment discharging the defendant upon a demurrer to an information charging a felony, although the Revised Statutes of 1899, sections 2476 and 2482, as amended, Laws of Mo. 1901, p. 139, authorize the prosecution of both felonies and misdemeanors by indictment and information and provide that proceedings upon information shall be governed by the law and practice applicable to trials upon indictments. The principle of this case is the same as those above cited; that the statute authorizing the appeal limits the same to adverse rulings on demurrer to, or quashing the indictment, or to judgments arrested on indictments, as distinguished from information supra. [State v. Adams, 193 Mo. 196, 91 S. W. 946.] The appeal in this case, being as it is by the State, from an adverse ruling on a demurrer to the information rather than an indictment, it is clear under the adjudications cited, that this court acquired no jurisdiction thereby, for the reasons that the statute authorizes such appeals only when an indictment, rather than an information, is
For the reasons given, the appeal will therefore be dismissed.