State v. Risley

Sherwood, C. J. The indictment is undoubtedly sufficient. The only point for discussion is, whether the State, in the circumstances of this case, is allowed an appeal. The statute provides: “ 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.” “ When any indictment is quashed or adjudged insufficient on demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, * * may cause the defendant to be committed or recognized to answer a new indictment, or if the prosecuting'attorney prays an appeal to the Supreme Court, the court may, in its discretion, grant an appeal.” R. S. ¡1879, §§ 1985, 1986. This statutory provision came before us for adjudication in State v. Bollinger, 69 Mo. 577, where it was held that the State was allowed an appeal only in the cases mentioned in section 1986— Norton, J., who delivered the opinion of the court, remarking: “We think it clear that under the above sections the right of the State to prosecute an appeal is limited to those cases where the indictment has been adjudged to Fein sufficient, either on motion to quash, on demurrer, or motion in arrest of judgment, because of defective indictment.”?.; This ruling was in entire accord with the familiar rule, too familiar by far to require citation of authorities in its support, that statutory exceptions are to be strictly construed. As the instances when the State may appeal are plainly exceptionál, the only point, of inquiry is, does this case fall within them ? obviously not, for the patent and palpable reason that here there has been neither motion to quash, demurrer nor motion in arrest. Such a method of assailing [the sufficiency of an indictment, as that attempted in the present instance, has never passed into precedent or received the sanction of authority; at least the [611] books furnish no such example. It is clearly an innovation in the criminal practice, and should not be tolerated. Under repeated rulings in this State, if the defendant’s objection to the validity of the indictment had assumed the shape of a motion to quash or a demurrer, such motion or demurrer must have distinctly specified the grounds on which based or else have been disregarded. R. S. 1879, § 1818; State v. Poston, 68 Mo. 521, and cases cited. The object, doubtless, of the legislature in thus requiring that the motion or demurrer “ distinctly specify the grounds of objection,” was that the prosecuting attorney, being apprised of the particular defect, might remedy it by having a new bill found, and thus avoid the accumulation of onerous costs. If the defendant, in the court below, had filed his motion to quash or demurrer to the indictment, and in such motion or demurrer set forth as a reason “ that the indictment does not state facts sufficient to maintain a judgment of conviction,” that court, if regardful of its duty in the premises, would have obeyed the statute, and disregarded “ the groundless grounds of objection to the indictment.” But if the practice inaugurated by the defendant is to prevail, he may do that ore tenus which he could not successfully do in writing, and thus accomplish more by an indirection than could be done directly — more by a flank movement than an open, straightforward attack, thereby practically nullifying the provisions of the statute respecting motions and demurrers in criminal cases. It has been urged that as a similar practice to the one under discussion has prevailed in this State in civil cases, that, therefore, it should be allowed also in criminal cases. In reference to this position it may be replied, first, that the statute only allows an appeal to the State in the circumstances already instanced, and this is not one of those instances ; and, second, that in civil cases a general demurrer that the petition “ does not state facts sufficient to constitute a cause of action,” is expressly allowed by statute, while in criminal cases, as already seen, the demurrer must [612] be specific. These reasons are deemed sufficient to establish that the erroneous ruling of the court below in allowing the defendant to make a general and oral attack on the sufficiency of the indictment does not, under the statute, furnish any right to the State to appeal, and hence the appeal should be dismissed. All concur.