State v. Gregory

38 Mo. 501

Opinion

Wagner, Judge,

delivered the opinion of the court.

A motion is made in this court to dismiss the appeal pending in this case, because there was no final judgment in the court below. A demurrer was filed to the indictment, and the record shows that the demurrer was sustained by the court, and the attorney prosecuting for the State excepted; but no further proceedings were had, nor was there any final judgment rendered. An appeal can only be prosecuted to this court from a final judgment; and' when the demurrer was sustained, it was necessary that judgment should have been rendered thereon in favor of the defendant before the plaintiff could pursue any further remedy. The formal entry of judgment for defendant on demurrer to indictment would be—

“Whereupon all and singular the premises being seen, and by the court here fully understood, for that it appears to the court hero that the said indictment and the matters therein contained are not sufficient in law to compel the said defendant (naming him) to answer thereto, and that no process upon the said indictment-ought by the law of the land to be had against him; therefore it is considered by the court here, that the s,aid Felix Gregory be dismissed and discharged of the said indictment, and that he go thereof without day”—4 Chit. Crim. Law, 277 ; 2 Har. Entr. 293.

The appeal is dismissed.

The other judges concur.