217 S.W. 310 | Mo. | 1919
Relator, William Stinger, seeks to prohibit the St. Louis Court of Criminal Correction from trying a case against him, wherein, by the information of the prosecuting attorney of said court, he is charged, as a member of the Metropolitan Police Department of the City of St. Louis, with wilfully, unlawfully and maliciously arresting and imprisoning Edward Meany, *299 while relator was acting in his official capacity, and with wilfully and unlawfully intending to oppress said Meany and deprive him of his liberty without any warrant to authorize the arrest, knowing Meany had been guilty of no violation of the law; in short, a prosecution for oppression in office, based on Section 4411, Revised Statutes 1909. That statute is as follows:
"Every person exercising or holding any office of public trust who shall be guilty of wilful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor." [Sec. 4411, R.S. 1909.]
As regards punishment for a violation of said section, another section provides:
"Every person who shall be convicted of any of the offenses mentioned in the preceding sections of this article, shall be forever disqualified from holding any office of honor, trust or profit under the Constitution and laws of this State, and from voting at any election; and every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is by this or any other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office." [R.S. 1909, sec. 4413.]
Still another section says:
"Every officer or person holding any trust or appointment, who shall be convicted of any wilful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment." [R.S. 1909, sec. 4416.]
The jurisdiction of the Court of Criminal Correction was conferred in the act which established it, in these words: "Said Court shall have exclusive original jurisdiction *300
of all misdemeanors under the law of the State committed in St. Louis County, the punishment whereof is by fine or imprisonment in the county jail, or both, except in cases of assault and battery and affray which shall continue to be cognizable by justices of the peace and in relation to which the jurisdiction of said court shall be concurrent with them." [Laws 1865-1866, p. 78, sec. 10.] That act was amended in 1868 (Laws 1868, p. 265), Section 10 of the original act becoming Section 13 of the amendment, but with a modification which was carried into a second amendment (Laws 1869, pp. 194, 196). In Section 13 of the Act of 1869, the jurisdiction of the court was thus defined: "Said court shall have exclusive jurisdiction of all misdemeanors under the laws of this State committed in St. Louis County, the punishment whereof is by fine or imprisonment in the county jail or both, or by any forfeiture, except cases of assault and battery and riotous disturbance of the peace, which are cognizable by justices of the peace and in relation to which the jurisdiction of said court shall be concurrent with them; and said court shall have concurrent jurisdiction with the police court of the City of St. Louis of all offenses which may be declared to be misdemeanors under any law of the State and which may also be in violation of any ordinance of the City of St. Louis." It should be stated that since the separation of the city of St. Louis from the county, the jurisdiction is confined to offenses committed in the city. [State ex rel. v. Wilder,
The Court of Criminal Correction is a court of record, consisting of two divisions organized alike. The judges must possess the qualifications of a judge of the circuit court; the clerk, those of a clerk of the circuit court; a prosecuting attorney is provided for, who must possess the qualifications required of other prosecuting attorneys; the court may grant writs of habeas corpus; has jurisdiction of criminal appeals from justices of the peace; writs of error and appeals lie from it as from circuit courts, and with bills of exceptions. But nevertheless *301
it is not a court proceeding according to the course of the common law and, therefore, has cognizance of no matters except those entrusted to it by the statutes. [Ex parte O'Brien,
In support of their first proposition counsel for relator say the word "forfeiture" was used in the amendment in the sense of a fine; and sometimes it is thus used, especially in statutes prescribing the punishment for an offense. An instance is Ex parte Alexander, wherein the petitioner was seekingForfeiture. to be discharged from custody, he having been detained for non-payment of a fine imposed under a statute providing for a forfeiture of not more than one thousand dollars for selling lottery tickets. The prisoner contended the statute authorized no fine; hence the one assessed was illegal and he could not be imprisoned for not paying the one assessed. It was held forfeiture in the statute meant fine and the sentence of a fine was lawful. [
But the phrase in the amendment is "by any forfeiture;" words of broader significance than "forfeiture" by itself would be; for it is difficult to perceive how a statute conferring jurisdiction over misdemeanors "the punishment whereof is . . . by any
forfeiture," can be interpreted to mean only misdemeanors punishable by a single kind; that is, a forfeiture of money; or otherwise expressed, by a fine. The phrase "any forfeiture" implies that there were more than one kind, as in truth there were; and implies, too, that the Legislature meant to make all of them triable in the Court of Criminal Correction. When the amendatory acts were passed, fraud in office was a misdemeanor and thus punishable. [Gen. Stat. 1865, p. 808, secs. 18, 19.] So was the refusal of a jailer to receive a prisoner committed to his charge. [Ibid, p. 804, secs. 43, 44.] Oppression in office, though not expressly declared a misdemeanor until 1879 (R.S. 1879, sec. 1483), was treated as one in State v. Lawrence,
Different reasons are assigned in support of the proposition that oppression in office is not a misdemeanor, the two briefs filed against the jurisdiction of the court below disagreeing somewhat regarding the construction of theMisdemeanor: statutes supposed to exclude the offenseOppression in Office. from the misdemeanor class. The brief for relator argues that it is a crime of another nature, because it is punishable only by forfeiture of office, whereas the statutes define a misdemeanor as "every offense punishable only by fine or imprisonment in a county jail, or both." [G.S. 1865, p. 828, sec. 35; R.S. 1909, sec. 4925.] Another brief says one convicted of official oppression can be fined, imprisoned in jail, disqualified to vote or hold office, and his office forfeited; hence as misdemeanors are declared to be offenses punishable only by fine or imprisonment, or both, the offense in question is of another kind. And the argument is advanced, too, that it is not a misdemeanor, or at least one not triable by the court below, because it is an infamous crime.
We have stated that in the Revised Statutes of 1879, Section 16 of Chapter 204 of the General Statutes of 1865 was amended, and that one of the changes made was a declaration that every person guilty of wilful and malicious oppression, etc., in his official capacity or under color of his office, should be deemed guilty of a misdemeanor. [R.S. 1879, sec. 1483.] Therefore, so far as the power of the Court of Criminal Correction *305
to try the relator depends on the act he is accused of being a misdemeanor, that statutory declaration is conclusive. If an offense is classified as a felony or as a misdemeanor by the statute which creates it, its character as the one or the other is determined thereby, regardless of the punishment prescribed; and even though by the common law definition, or by one given in a statute declaring generally what elements are required to constitute a felony and what a misdemeanor, it would fall in the other class. [State ex rel. v. Foster,
Long before the adoption of the present Constitution the offense in question was, as it still is, an infamous crime within the meaning of the statute defining such crimes as including every offense for which the culprit is "disqualified, or rendered incompetent to be a witness or juror, or to vote at any election, or to hold any office of honor, profit or trust within the State." [G.S. 1865, sec. 34, p. 828; R.S. 1909, sec. 4924.] The Constitution empowered the General Assembly to enact laws "excluding from the right of voting all persons convicted of felony or other infamous crime, or misdemeanors connected with the right of suffrage." [Const. Art. VIII, sec. 10.] It is asserted for the relator that this provision of the Constitution prevents any infamous crime from being classed as a misdemeanor; which is the same as to say the Statutes of 1879, in declaring official oppression a misdemeanor, violated the Constitution. We understand the reasoning to run this way: From the mention of the three kinds of offenses for which a perpetrator may be disqualified by legislation to vote, the inference is to be drawn that any offense which is neither a felony nor a misdemeanor connected with suffrage, but which nevertheless deprives of said right, is one of the "other infamous crimes" spoken of, but cannot be a misdemeanor. *306
This interpretation of the cited provision is strained and unsound. The purpose of that clause of the Constitution was not to divide criminal acts into three distinct and unchangeable classes, nor to declare what transgressions should fall in one class and what in another, Neither was it intended to forbid the Legislature to make particular acts felonies or misdemeanors as might be deemed expedient, as was decided in a case involving a somewhat similar question. [State ex rel. v. Buckman,
We pass to the third proposition asserted for the relator, namely, that the language of the acts to amend the jurisdictional clause of the act to create the Court of Criminal Correction, excludes relator's alleged offense from thePunishment. cognizance of said court, because of the punishment prescribed. As stated before, the two briefs filed in opposition to the court's jurisdiction do not agree upon this point, and it is proper, perhaps necessary, to determine which view is right.
The theory that forfeiture is the sole punishment is arrived at by the following reasoning: Section 4416, *307
Revised Statutes 1909, says every officer who is convicted of misconduct in office, etc., where no special provision is madefor the punishment of the misdemeanor, shall be punished by a fine not exceeding five hundred dollars or imprisonment in a county jail, not exceeding one year, or both. The emphasized words "where no special provision is made for the punishment" are said to remove the offense of official misconduct from the effect of that section because a special punishment is prescribed in Section 4413, namely, forfeiture of office, disqualification to hold office and to vote. In the statutes of 1865 and in earlier revisions, oppression in office, fraud in office, the exaction of illegal fees by officers, the collection of taxes not due or more than were due, were all declared criminal acts and penalties of fine and imprisonment were provided for each in the respective sections defining them. [G.S. 1865, ch. 204, secs. 16, 17, 19, 20.] Forfeiture of office and disqualification to hold office were prescribed also for official oppression or fraud. [Ibid, secs. 18, 23.] In the same chapter was a section (21) exactly like Section 4416 of the present revision, and providing a general punishment for official misconduct when no special punishment was provided. Until 1879 that section applied to none of the offenses above enumerated, because every one had its particular punishment prescribed. In Revised Statutes of 1879, the special punishments by fine and imprisonment were omitted from the different sections, but the disqualification for office, etc., and forfeiture of office, where these penalties attached, were left as before. [R.S. 1879, secs. 1483, 1485, 1487.] The purpose of this change was to include those offenses within the general punishment prescribed in Section 1488 of that revision (the same as Sec. 21, ch. 204, G.S. 1865, and Sec. 4416, R.S. 1909). The words "where no special provision is made for the punishment" mean, in our opinion, where no fine or imprisonment is provided, and were not intended to exclude from the operation of the section an official misdemeanor merely because *308
forfeiture of office attended it. This view of the matter becomes clearer in the light thrown on it by the clause of the disqualifying and forfeiting section, which declares that every officer convicted of misconduct punishable by disqualification to hold office, "shall in addition to the other punishmentprescribed for such offense, forfeit his office." [G.S. 1865, p. 808, sec. 23; R.S. 1879, sec. 1485; R.S. 1909, sec. 4413.] The phrase we have italicized evidently contemplated that penalties other than forfeiture of office had been or might be prescribed for oppression or other official misconduct — penalties of fine or imprisonment (See, too, Const. 1875, Art. 14, sec. 7); and we hold that since 1879 the punishments provided in Section 1488 of the Revised Statutes of that year (R.S. 1909, sec. 4416) could be inflicted for oppression in office. In a case of conviction for that crime, a fine was assessed by the jury and this was held to be proper under Section 3737, Revised Statutes 1889 (R.S. 1909, sec. 4416), and by the judgment of the court upon the verdict, the defendant was removed from office, which also was held proper under Section 3734, R.S. 1889 (Sec. 4413, R.S. 1909). [State v. Ragsdale,
In one brief the position is taken that all consequences prescribed in both sections (4416 and 4413) would follow a conviction for official oppression, and on this premise is based the main attack on the jurisdiction of the Court of Criminal Correction. The argument runs in this wise: the crime may be punished as follows, by, first, disqualification to vote; second, disqualification to hold office; third, forfeiture of office, and, fourth, fine or imprisonment, or both; whereas it is contended the jurisdiction of the Court of Criminal Correction is, under the amendatory acts, limited to misdemeanors punishable in not more than two of those ways, namely by fine or imprisonment or both or forfeiture. *309
If disqualification to vote or hold office, when incident to conviction for a misdemeanor, ousts the jurisdiction of the court below then it has none over petit larceny, for larceny in any degree disqualifies for those franchises. [R.S. 1909, sec. 4631; R.S. 1879, sec. 1378; G.S. 1865, p. 791, sec. 66.] Yet petit larceny is not only a misdemeanor, as said before, but it is one of which the Court of Criminal Correction has been held to have cognizance. [State v. Buchardt,
The point most pressed it that the language of the amended clause whereby the court was given cognizance of misdemeanors the punishment whereof is fine or imprisonment in jail, or both, or forfeiture, excludes from the court's cognizance misdemeanors of which the punishment must be not only fine, imprisonment or both, but also forfeiture of office; that the word "or" preceding the words "by any forfeiture," operates to prevent the court from trying a misdemeanor where fine or imprisonment or both, plus
forfeiture of office, must follow conviction. That is a refined and technical construction, for it is not easy to understand why the Legislature would confer the power to try misdemeanors entailing forfeiture alone, and not those also punishable in the usual way. However, the point must be determined by the settled rules of interpretation. The word or in statutes or documents is frequently interpreted to mean and, and this interpretation is given to it whenever required to carry out the plain purpose of the act or contract and when to adopt the literal meaning would defeat the purpose or lead *310
to an absurd result. [2 Sutherland, Stat. Const. sec. 397; Black, Interp. Laws, p. 228.] Some courts have gone so far as to say the words "and" and "or" are interchangeable as the sense may require (People ex rel. v. Rice,
The Supreme Court of West Virginia held that a clause of the State Constitution which declared no person should be deprived of life, liberty or property without due process of law and thejudgment of his peers, did not mean that every accused person, whatever the charge, was entitled to a jury trial; but that the word and should be construed to mean or, and to provide that no one should be deprived of life, liberty or property without due process of law or the judgment of his peers. In reasoning upon the point the court said "due process of law" meant according to the law of the land, which never had accorded to a defendant, under all circumstances, the right to a trial by jury before he could be deprived of his property, and to do so would make government *311
impracticable; saying further, that it was difficult to know why the conjunction and was used instead of or, but the provision must "be interpreted to mean the same as in the constitution of other states and the word `and' used in it be interpreted to mean `or.'" [Jelly v. Dils,
A statute of Pennsylvania regarding contempts said no publication out of court respecting the conduct of the judges, officers of the court, etc., should be cause for an attachment; "but that the party aggrieved might proceed against the author, printer or publisher, or either of them, by indictment, or he may bring an action at law and recover damages." A person libelled first brought an action for damages and later the author of the libel was indicted under a statute against criminal libels. To this indictment a plea in bar was filed setting up that the prosecutor had previously instituted an action at law and, therefore, under the statute, the right to indict was lost. The court held this construction would operate to give the aggrieved party, instead of the attorney for the Commonwealth, the privilege of determining whether the culprit should be prosecuted or sued for damages; a result the Legislature could not have intended and therefore the word "or" should be given the meaning of "and" so that the statute would authorize both an indictment and an action for damages. [Foster v. Commonwealth, 8 Watts Searg. (Penn.) 77.]
A defendant was indicted for "inveigling, stealing and carrying away three slaves," under a statute which, in that language, created the offense. The trial court instructed the jury the charge of "inveigling, stealing and carrying away," etc., would be established by any proof which satisfied the jury the defendant stole the slaves, and on the appeal this ruling was assigned for error. Another section of the statute was directed against persons who should hire, aid, or counsel any person to "inveigle, steal or carry away," etc. The first section related to the principal in the crime and *312 the second to an accessory. On appeal it was held the word or in the first section should be given the meaning of and, as the offense consisted in stealing a negro whether by inveigling him or in other ways. [State v. McCoy, 2 Speers (S.C.) 711.]
In a prosecution under a statute to regulate the sale of intoxicating liquors, which declared that "for every violation of the provisions of the first and second section of this act, every person so offending shall forfeit and pay a fine," etc.,and was construed to mean or. The first section of the statute prohibited the sale, without a license, of intoxicating liquors to be drunk upon the premises where sold; the second section made it unlawful to sell to minors, persons intoxicated, etc. The defendant was convicted for selling without a license, and on appeal contended the punishment prescribed was for a violation of the first and second sections; that is, both, and he had been wrongly sentenced for violating only the first section. The opinion treated this contention lightly, as it deserved to be, saying: "Even a penal law should not be construed so strictly as to defeat the obvious intention of the Legislature. [American Fur. Co. v. United States, 2 Peters, 358.] And and or are convertible as the sense of the statutes may require. [Townsend v. Read, 10 C.B. (N.S.) 308; Boyles v. Murphy,
A law provided that "if the father and mother of any child under the age of six years exposed it," etc., with intent to abandon it, they should be deemed guilty of a crime. A husband and wife were indicted for such a deed and the husband was tried and convicted. He appealed on the theory the crime was not committed unless his wife participated, pointing out that the law as it stood in a prior revision read: "If the father or mother," etc. It was contended the Legislature must have meant in substituting the word and for or, to *313 change the elements of the offense by requiring a joint perpetration by both parents. The court conceded that where the language of a statute is materially changed, ordinarily a change of meaning is intended and quoted a passage from Kent, setting forth the principles of interpretation:
"It is a rule in the construction of statutes, that, in the first instance, the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or any declared purpose of the statute, or if it would involve any absurdity, repugnance or inconsistency in its different provisions, the grammatical sense must be modified, extended or abridged, so far as to avoid such an inconvenience, but no farther. [Warburton v. Loveland, 1 Hud. Brooke, (Irish) 2 Q.B.R. 648; Tolderoy v. Colt, 1 M. W. 264.] Penal statutes are to be construed strictly. By this is meant only that they are not to be so extended by implication, and beyond the legitimate import of the words used, as to embrace cases or acts not clearly described by such words. They are not to be made to involve an absurdity, or frustrate the design of the legislators. [Rawson v. State,
The court then said, apropos to the appeal it was considering, that if it adopted the construction invoked by the appellant, if one of the parents was dead, the survivor might abandon a child with impunity; and such a construction ought not to be placed on the statute, as it would defeat its purpose; that the word and
may be interpreted as a disjunctive, and the word or as a conjunctive when the sense absolutely requires it. [State v. Smith,
According to those authorities and others we might cite, the courts will depart from the literal meaning of the words of a penal statute even when to do so will be to the disadvantage of the accused; and this doctrine is applied in interpreting the very words with which *314
we are concerned. In harmony with the above cases, and expressly approving some of them, this court held the word or in a statute defining a crime, should be construed to mean and in order to avoid attaching a meaning to the law which would be inconsistent with a rational purpose in its enactment. [State v. Long,
We are not dealing with a criminal statute, but with a jurisdictional one. Nor will it be to the prejudice of relator to construe or as used in the amendatory act affecting the Court of Criminal Correction to mean and; for if his case were held not triable there but in some other court, the same consequences would attend conviction. Whatever may be the rule for interpreting these words in penal laws, when used elsewhere they are given the meaning their context or the purpose intended requires. This court displaced the word "or" and substituted "and" in a bond given in an attachment suit for the delivery of property, in order to avoid a consequence contrary to the intention of the parties and despite the unambiguous language of the bond. [Hardcastle v. Hickman,
Our preliminary rule is discharged and the writ denied. All concur.