Boling v. St. Louis & San Francisco Railway Co.

67 S.W. 937, 94 Mo. App. 67, 1902 Mo. App. LEXIS 529

• Court: Missouri Court of Appeals
• Decided: April 15, 1902
• Status: Published

Opinion

GOODE, J.

In this case we find the appellant saved an exception to an instruction that nine of the jury might return a verdict. The objection to the charge was reasserted in the motion for a new trial, as follows:

“Because the court erred in instructing the jury, over defendant’s objections and exceptions, that any nine of their number could return a verdict; for the reason that it appeared from the evidence before the court that the so-called amendment to the Constitution of this State purporting to provide therefor was not properly submitted, in that the notice provided for in said Constitution was never given; and, hence, said so-called amendment did not carry, and under the Constitution of this State no valid verdict could be rendered against defendant except by the concurrence of the entire jury.”

It was again asserted in the third paragraph of the motion in arrest of judgment:

“Because the verdict was not rendered by the entire jury as required by the Constitution.”

In support of this assignment of error, the appellant has preserved evidence touching the publication of the constitutional amendment, whose validity is challenged, in several counties and in the city of St. Louis, claiming the publication was insufficient and the amendment never legally adopted.

We think, therefore, this cause should be transferred to the Supreme Court as involving a constitutional question, and it is so ordered.

All concur.