State v. Moody

RylaND, Judge,

delivered the opinion of the court.

This was an indictment for exercising unlawfully the trade >and business of a public auctioneer. The defendant appeared' .and by consent of the parties a jury was waived and the facts submitted on “ not guilty” to the court, who heard the evidence and found the defendant guilty, and assessed the statutory fine of $500. The defendant moved for a new trial, which being overruled, he appeals to this court. There are no questions of law saved in the record — no instructions given or refused — and indeed nothing in the case except as to the sufficiency of the evidence to support or warrant the judgment or finding of the court. We have examined the evidence and are satisfied that the court found properly.

This case is, so far as relates to the trial by the court without a jury, similar to the case of the State v. Neales, 10 Mo. 500 . The case of Neales was tried under the act of 1845, which requires all issues of fact in any criminal case to be tried *561 by a jury. (R. C. 1845, p. 878.) Tbe present case was tried under tbe act of 1855, concerning practice and proceedings in criminal cases. (R. C. 1855, p. 1189.) Tbe last act expressly authorizes tbe defendant and prosecuting attorney, with tbe assent of tbe court, to submit tbe trial of misdemeanors to tbe court, whose finding, in all such offences, shall have tbe force and effect of tbe verdict of a jury.

Under this last act, then, the court had tbe right to try the issue, and its finding, like a verdict, will not be disturbed even upon contradictory evidence. Let tbe judgment be affirmed; tbe other judges concurring.