State v. Barada , 49 Mo. 504 ( 1872 )

Adams, Judge,

delivered the opinion of the court.

This was a prosecution commenced before a justice of the peace in the city of St. Louis, for a breach of the peace, which .resulted in a verdict and judgment against the defendant, from which he took an appeal to the St. Louis Court of Criminal Correction, where a judgment was again rendered against him, and he has brought the case here by appeal.

. The defendant, both before the justice and in the Court of .Criminal Correction, filed motions to dismiss the prosecution, upon the alleged ground that the case was for a higher grade of misdemeanor than was triable before a justice of the peace. If such, however, had been the case, the prosecution could not for that reason be dismissed.

On a trial before a justice of the peace for a breach of the peace, if the facts disclose a case not cognizable before the justice, it becomes his duty to discharge the jury and to send the case to the court having criminal jurisdiction in his county. If he fails to do this, and goes on to try the case, and there be a. verdict and judgment against the defendant, he may appeal. Such appeals, outside of St. Louis, are taken generally to the Circuit Court, and all such misdemeanors are indictable. And so, if it should appear in the Circuit Court on the trial of such appeal that the offense was indictable, the court would not 'dismiss the prosecution, but discharge the jury, and send the case before the grand jury. In St. Louis such misdemeanors are not indictable, but are tried on information before the Court of Criminal Correction. Then what is the duty of that court in 'appeals like this, when the facts disclosed may show a misdemeanor above the jurisdiction of the justice ?

It has no right to discharge the defendant. The case must proceed in some way, either on a new information to he filed, or on the original information made before the justice. If the original information is sufficient, there would be no necessity for any other to be filed. In my judgment, the information in this case, though informal, was sufficient, and I can see no good

reason for disturbing the judgment. Let it be affirmed.

The other judges concur.