* Corpus Juris-Cyc References: Courts, 15CJ, section 512, p. 1082, n. 66. The defendant was arrested and tried in a justice of the peace court in Howell county under an information charging him with criminal libel. He was convicted in that court and appealed to the circuit court of that county, where, upon affidavit of defendant, a change of venue was granted to Phelps county, and upon conviction in that county on trial before a jury he appealed to this court. In his motion for new trial, which was overruled by the circuit court one of the grounds assigned as error is "Fourth — Because the court erred in giving instruction No. 4 on the part of the State for the reason that the giving of said instruction was an unwarranted invasion of the rights of the jury in criminal libel cases under section 14 of article 2 of the Constitution of Missouri."
After the cause was lodged here on appeal, the defendant filed a motion to dismiss the cause alleging that under the expressed provision of the constitution and laws of this State a justice of the *Page 431 peace is without jurisdiction over the offense of criminal libel, and that because the justice of peace had no jurisdiction, the circuit court of Howell county had none, and the circuit court of Phelps county acquired no jurisdiction on a change of venue, and that this court is without jurisdiction.
We think a constitutional question is raised by the motion for new trial, and it is also raised in the motion to dismiss the cause and the suggestions in support thereof. We think the constitutional question raised in the motion for new trial as well as in the motion to dismiss, is for determination by the Supreme Court of this State. This is in keeping with a ruling of this court in the case of State v. West, 20 S.W.2d 160; and State v. Kramer (Mo. Sup.), 222 S.W. l.c. 823; State v. Campbell (Mo. Sup.), 259 S.W. 430; State v. Kanan (Mo. App.), 282 S.W. 465.
For the reasons given this case is ordered transferred to the Supreme Court. Cox, P.J., and Bailey, J., concur.