State v. Hackman

Missouri Court of Appeals

State v. Hackman

545 S.W.2d 91, 1976 Mo. App. LEXIS 2687

Missouri Court of Appeals·Decided December 22, 1976·No. No. 10485·Published

Opinion

STONE, Judge.

A Howell County jury found defendant Ervin Hackman, Jr. guilty of felonious assault without malice. On July 5, 1976, defendant filed a “motion to set aside judgment or motion for new trial.” Thereafter, Special Judge James T. Riley entered an order on September 13, 1976, which granted defendant’s motion for new trial in accordance with paragraph No. 22 of said after-trial motion which alleged that the court erred in allowing a state’s witness, a highway patrolman, to guard the jury during the trial.

The state’s right to appeal the outcome of criminal prosecutions is limited to those grounds specified in Rule 28.04. The trial court’s order granting defendant a new trial did not deal with the sufficiency of an information or an indictment [Rule 28.04(a)] and did not arrest or set aside a judgment. Rules 27.22 and 28.04(b).

The order of the circuit court is not ap-pealable and this court is without jurisdiction to entertain this appeal tendered by the state. State v. Ulmer, 351 S.W.2d 7, 10[2] (Mo.1961). Accordingly, the appeal is dismissed.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.

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STONE, Judge.

A Howell County jury found defendant Ervin Hackman, Jr. guilty of felonious assault without malice. On July 5, 1976, defendant filed a “motion to set aside judgment or motion for new trial.” Thereafter, Special Judge James T. Riley entered an order on September 13, 1976, which granted defendant’s motion for new trial in accordance with paragraph No. 22 of said after-trial motion which alleged that the court erred in allowing a state’s witness, a highway patrolman, to guard the jury during the trial.

The state’s right to appeal the outcome of criminal prosecutions is limited to those grounds specified in Rule 28.04. The trial court’s order granting defendant a new trial did not deal with the sufficiency of an information or an indictment [Rule 28.04(a)] and did not arrest or set aside a judgment. Rules 27.22 and 28.04(b).

The order of the circuit court is not ap-pealable and this court is without jurisdiction to entertain this appeal tendered by the state. State v. Ulmer, 351 S.W.2d 7, 10[2] (Mo.1961). Accordingly, the appeal is dismissed.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.

State v. Hackman, 545 S.W.2d 91, 1976 Mo. App. LEXIS 2687 (Mo. Ct. App. 1976).

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Opinion

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