Legal Opinion

State v. McKay

Missouri Court of Appeals

Decided January 4, 1886PublishedCited by 1 opinion

Appeal from Linn Circuit Court, Hon. Gr. D. Burgess, Judge. . . The facts sufficiently appear from the opinion of the court/ I. This is not a case of variance, but of failure of proof. There was no proof of the road, or of its locality. Wharton Cr. Evidence (8 Ed.) sect. 109 ; Kelley’s Criminal Law and Practice, sect. 182. The instructions ignore the issues. II. Defendant’s instruction in the nature of a demurrer to the evidence should have been given.

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Appeal from Linn Circuit Court, Hon. Gr. D. Burgess, Judge. . . The facts sufficiently appear from the opinion of the court/ I. This is not a case of variance, but of failure of proof. There was no proof of the road, or of its locality. Wharton Cr. Evidence (8 Ed.) sect. 109 ; Kelley’s Criminal Law and Practice, sect. 182. The instructions ignore the issues. II. Defendant’s instruction in the nature of a demurrer to the evidence should have been given. It was not shown that the offence, if committed at all, was committed in Linn county. The judgment cannot stand. State ■». Hartnett, 75 Mo.…

1Opinion of the CourtHall, J.

The defendant was indicted for obstructing a public road. There was no evidence, direct or from which it could have been inferred, that the offence was committed in Linn county. For this reason the judgment must be reversed. The State v. Hughes, 82 Mo. 88; The State v. Apperger, 80 Mo. 173; The State v. Wheeler, 79 Mo. 366; The State v. Inman, 76 Mo. 548; The State v. Babb, 76 Mo. 503; The State v. Hartnett, 75 Mo. 251; The State v. Burgess, 75 Mo. 541; The State v. Hughes, 71 Mo. 633.

The judgment reversed and the cause remanded.

All concur.

2Cases cited7 opinions

  1. State v. HughesSupreme Court of Missouri · 1884
  2. State v. HartnettSupreme Court of Missouri · 1881
  3. State v. HughesSupreme Court of Missouri · 1880
  4. State v. WheelerSupreme Court of Missouri · 1883
  5. State v. BurgessSupreme Court of Missouri · 1882

2 more not listed; retrieve them via the Exa API.

3Cited by1 opinion

  1. State v. ChiltonMissouri Court of Appeals · 1890

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