State v. McAnally

Missouri Court of Appeals

State v. McAnally

125 S.W. 1174, 147 Mo. App. 130, 1910 Mo. App. LEXIS 539

DecidedFebruary 1, 1910

StatusPublished

This text of 125 S.W. 1174 (State v. McAnally) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. McAnally, 125 S.W. 1174, 147 Mo. App. 130, 1910 Mo. App. LEXIS 539 (Mo. Ct. App. 1910).

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Opinion

REYNOLDS, P. J.

(after stating the facts).— While it is true that the defendant invoked the provisions of the Constitution of the State, securing a right of trial by jury and guaranteeing due process of law, the determination of which would involve the construction of the Constitution, we do not think that this is a case involving the construction of the Constitution of the State. The statutes concerning practice in criminal cases governs this matter so completely, that it is unnecessary to resort to constitutional construction to determine it. Section 2608, Revised Statutes 1899, provides: “All issues of fact in any criminal cause shali be tried by a jury, to be selected, summoned and returned in a manner prescribed by law.” Section 2609, however, provides: “But the defendant and prosecuting attorney, with the assent of the court, may submit the trial of misdemeanors to the court, whose finding in all such offenses shall have the force and effect of a verdict of the jury.” This section requires positive, affirmative action on the part of the defendant to dispense with a jury. That was not done in this case and in the absence of such assent the court ■ was without, power to try the case without a jury. The appeal of the defendant to the constitutional provisions was, in effect, a demand for a jury. Even without that appeal, if the defendant had stood mute and made no demand for- a jury, it was the duty of the trial court, under the law, to have ordered one and to have tried the case with the aid of a jury. For this reason the verdict and judgment of the trial court will have to be set aside. We see no other error in the record of the case, which is [133]*133submitted to us without either assignment of error or joinder in error and without the aid of briefs or argument of counsel

The point is made against the indictment, that as the local option law had been adopted in Bollinger county prior to the alleged commission of the offenses charged, that the law regulating druggists had been abrogated. It has been decided by our courts, both Supreme and Appellate, that the Local Option Law and the law regulating druggists and pharmacists may coexist in the same territory. [See Ex parte Swann, 96 Mo. 44, 9 S. W. 10; State v. Moore, 107 Mo. 78, 16 S. W. 937; State v. Williams, 38 Mo. App. 37; State v. Bevans, 52 Mo. App. 130.]

Judgment in the case is reversed and the cause remanded.

All concur.

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REYNOLDS, P. J.

(after stating the facts).— While it is true that the defendant invoked the provisions of the Constitution of the State, securing a right of trial by jury and guaranteeing due process of law, the determination of which would involve the construction of the Constitution, we do not think that this is a case involving the construction of the Constitution of the State. The statutes concerning practice in criminal cases governs this matter so completely, that it is unnecessary to resort to constitutional construction to determine it. Section 2608, Revised Statutes 1899, provides: “All issues of fact in any criminal cause shali be tried by a jury, to be selected, summoned and returned in a manner prescribed by law.” Section 2609, however, provides: “But the defendant and prosecuting attorney, with the assent of the court, may submit the trial of misdemeanors to the court, whose finding in all such offenses shall have the force and effect of a verdict of the jury.” This section requires positive, affirmative action on the part of the defendant to dispense with a jury. That was not done in this case and in the absence of such assent the court ■ was without, power to try the case without a jury. The appeal of the defendant to the constitutional provisions was, in effect, a demand for a jury. Even without that appeal, if the defendant had stood mute and made no demand for- a jury, it was the duty of the trial court, under the law, to have ordered one and to have tried the case with the aid of a jury. For this reason the verdict and judgment of the trial court will have to be set aside. We see no other error in the record of the case, which is [133]*133submitted to us without either assignment of error or joinder in error and without the aid of briefs or argument of counsel

The point is made against the indictment, that as the local option law had been adopted in Bollinger county prior to the alleged commission of the offenses charged, that the law regulating druggists had been abrogated. It has been decided by our courts, both Supreme and Appellate, that the Local Option Law and the law regulating druggists and pharmacists may coexist in the same territory. [See Ex parte Swann, 96 Mo. 44, 9 S. W. 10; State v. Moore, 107 Mo. 78, 16 S. W. 937; State v. Williams, 38 Mo. App. 37; State v. Bevans, 52 Mo. App. 130.]

Judgment in the case is reversed and the cause remanded.

All concur.

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125 S.W. 1174, 147 Mo. App. 130, 1910 Mo. App. LEXIS 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcanally-moctapp-1910.

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