State v. Gilmore

28 Mo. App. 561, 1888 Mo. App. LEXIS 27

Opinion

Ellison, J.

Defendant was indicted at the November term, 1886, of the Jackson criminal court, under section 1547, Revised Statutes, as amended by Acts, 1881, page 112, commonly known as the “ Johnson Gambling Law.” He was convicted and his punishment assessed at six months in the county jail, from which he appeals to this court. It is declared by the section referred to, that whoever shall “be convicted of any of the offences therein named, shall be adjudged guilty of a felony, and shall be punished by imprisonment in the penitentiary for a term not less than two nor more than five years; or by imprisonment in the county jail for a term not less than six nor more than twelve months.” Our statutory definition of a felony is “any offence for which the offender, on con viction, shall be liable by law, to be punished with death or imprisonment in the penitentiary.” Rev. Stat., sec. 1676. A misdemeanor by the same statute (sec. 1678) includes offences “punishable only by fine or imprisonment in the county jail, or both.” From these sections, 1676 and 1678, it is evident that the defendant has been convicted of a felony, for the reason that the offence was one for which he was “liable” to be punished by imprisonment in the penitentiary. The fact that he was, in this case, actually punished by imprisonment in the county jail does not alter the matter; he was liable to a punishment of imprisonment in the penitentiary, and the punishment prescribed for his offence was not fine or imprisonment in the county jail “ only.” But aside from these sections, the statute defining the offence declares its commission to be a felony without regard to the punishment which may be inflicted.

There is no doubt of the want of jurisdiction in this court, under section 12, article 6, of the constitution, and we, therefore, order the cause transferred to the Supreme Court of the state.