256 Mo. 227 | Mo. | 1914
— Defendant was prosecuted in the circuit court of the city of St. Louis upon an information charging him with assault with intent to kill, for that, it was averred, he had stabbed one Rosenthal with a knife. Defendant upon his trial was found guilty by a jury of common assault only and his punishment was assessed at six months’ imprisonment in the city jail and a fine of one hundred dollars. The case is here upon a constitutional question raised by the defendant in the manner below to be pointed out.
Defendant in a proper and timely way filed in the court nisi a plea in bar in which he averred former jeopardy and prayed that for reason thereof he should be finally discharged. In substance, his plea of former jeopardy was based upon the fact that theretofore upon a proper information filed in the St. Louis Court of Criminal Correction by an associate prosecuting attorney of the city of St. Louis he had been charged with assault' and battery upon the said Rosenthal; that he pleaded not guilty to the latter charge, and was thereupon, for the misdemeanor aforesaid, placed upon his trial in the court of criminal correction before a jury duly impaneled and sworn and charged with his deliverance; that all of the testimony on the part of the State in the trial of the defendant for the misdemeanor aforesaid was fully heard by the court, and that thereupon, over the objections and against the protest of defendant, the judge of the court of criminal correction discharged the jury and made an order that defendant be held in bail to the grand jury to answer the charge of assault with intent to kill the said Rosenthal. Further it was averred that the two charges were identical, in that they were based upon identical facts and
Defendant in his plea in bar attacked the constitutionality of section 4902, Revised Statutes 1909', but for the reasons hereinafter stated this question falls out of the case. He also urged that the facts which he averred, and which the demurrer in law admits, of themselves made out an affirmative showing that he had been twice put in jeopardy of life or liberty for the same offense, in violation of the provisions of section 23, article 2, of the Constitution of Missouri. It is upon this constitutional question that we obtain jurisdiction.
Touching the facts shown upon the trial we may say that the testimony was conflicting. Upon the facts occurring at the immediate moment of the stabbing of Rosenthal by defendant there were no eye-witnesses, save and except Rosenthal and defendant himself. Prior to this stabbing there had been a saloon brawl between Rosenthal and defendant, in which, from the contradictory testimony, it is difficult to say who was the aggressor, though Rosenthal seems to have been the victor. After this encounter was over the defendant left the saloon by a rear door and Rosenthal purchased a bottle of beer at the bar. Rosenthal seems only to have drunk a portion of this beer when he also left the saloon by the same door out of which defendant had gone, for the purpose,’however, as he avers, of going to a toilet room. In a dark corridor or alleyway back of the saloon and leading to and near the toilet room, Rosenthal was attacked by defendant with
Defendant urged self-defense, and while admitting that he liad stabbed Rosenthal, he averred that he did so while Rosenthal was attacking him.
There is no point made as to the sufficiency of the evidence, which, after all, upon the contradictions shown by the record, was for the jury and is not for us. Such other facts as may arise in the case and become necessary to be stated in order to make clear the questions of law involved, will be set out in the opinion.
The State relies upon a statute which.it is conceded applies to the facts before us. This statute is as follows:
“If, upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law, to a felony, such person shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor*235 shall be liable to be afterward prosecuted for felony on the same facts, unless the court before which such trial may be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor.” [Sec. 4902., R. S. 1909.]
But it is contended that while the section set out does apply to all and every of the facts in the instant case this section is unconstitutional. That it is violative of the Fifth Amendment to the Constitution of the United States, and of section 23 of article 2 of the Constitution of Missouri.
The St. Louis Court of Criminal Correction, wherein the prosecution of defendant upon the information charging him with assault and battery was begun, and partly heard, to a stage, however, short of a verdict or judgment, has jurisdiction to hold preliminary hearings in felony cases just as and to a like extent as this power is given by statute to justices of the peace out in the State. [Sec. 7, p. 195', Laws 1869.] Likewise, such court has jurisdiction concurrently with justices of the peace to try misdemeanor cases. [Sec. 13, p. 196, Laws 1869.]
Learned counsel for defendant devotes some considerable part of his brief and no mean quantum of learning in an effort to prove that one reason for the constitutional invalidity of section 4902, supra, is that it vests in' the justice of the peace or court trying the misdemeanor case, a discretion to toll the constitutional guaranty against being put twice in jeopardy, at the will, whim or caprice of the justice of the peace or court. It may be that such a criticism is of itself a serious danger to the constitutional life of section 4902. But be that as it may be, touching this phase we are not compelled to pass and do not pass; for the reason that learned counsel has inadvertently overlooked a
“If in the course of any proceeding in said court by information or otherwise, it shall appear that the defendant has been guilty of felony, the court shall dismiss as to the lesser offense, and proceed to examine the matter, and commit or bail the defendant to answer to an indictment in the St. Louis criminal court, and if upon the trial of a party charged with felony in the St. Louis criminal court it should appear that the defendant is guilty of a misdemeanor only, the case shall not be therefor dismissed, but shall be proceeded on to judgment in said criminal court, to the same effect as if the defendant had been tried for misdemeanor in the court of criminal correction.” [Sec. 21, p. 198, Laws I860.]
Manifestly it must be conceded that the above section covers the facts in this case like a blanket. No attack on the constitutionality of this section is made. But it is probable that we are compelled to examine the constitutional question urged by defendant tbri he has been, upon the facts, put twice in jeopardy, from all of the four corners. So, unless section 21 of the Act of I860 (which act established the court of criminal correction, conferred upon it jurisdiction and prescribed its duties, privileges and limitations), is invalid by reason of being opposed to section 23 of article 2 of the Constitution, the point must be ruled against the defendant.
Nothing is plainer than that we come in the last analysis to the words of our own Constitution, the applicable part of which is section 23 of article 2, which reads thus:
“That no person shall be compelled to testify against himself in a criminal cause, nor shall any per*237 son, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty; but if tbe jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law. ’ ’
We need not concern ourselves as to whether either this discussion, or the law, is at all affected by the fact that the act creating the court of criminal correction antedates the adoption of our present Constitution, since the language of the Constitution of 1875 on this point is almost an exact copy of that of 1865', and in substance and meaning precisely the same. [Cf. section 19 of article 1, Constitution of 1865:] Likewise, we need not trouble ourselves in discussing whether the section of the law under inquiry violates, the Fifth Amendment to the Constitution-of the United States, since while long and seriously debated, it is now a settled and closed question that the provisions of the Fifth Amendment are neither limitations upon nor do they apply to or bind the several States. [1 Bishop’s New Crim. Law (8 Ed.), 981; Thorington v. Montgomery, 147 U. S. 490; State v. Rudolph, 187 Mo. 67; Capital City Dairy Co. v. Ohio, 183 U. S. 238; United States v. Keen, 1 McLean, 429.] Neither do we neéd to consider what the common law was on the question of what constitutes jeopardy, even if the common law on this point were a stable and fixed thing. For while in England the basic principle, “that,” as Blackstone expressed it, “no man is to be brought into jeopardy of his life more than once for the same offense” (4
But whatever the common law may have been, and whatever the present law of England and the formative stage thereof, as to being fixed or unstable, may be, does not matter to us, so far as we are here concerned. The common law has been changed by the statute quoted. The vexing and unsettled questions of, “What is jeopardy?” and, “What is the same offense?” and the more comprehensive one of, “When does jeopardy attach?” all fall out of this, case by reason of this statute, which fits the facts here on all-fours. We pause to say that even if the subsequent conviction of the defendant in the circuit court for a misdemeanor only, when he was on trial there for a felony, were not here a coincidence merely, as it indubitably was, instead of being jurisdictional, yet this incidental contingency is provided for and met by the provisions of the section under inquiry, where it is provided that upon a trial for a felony in the criminal court if it shall appear that only a misdemeanor has been committed, the cause shall nevertheless proceed to final judgment. [Sec. 21, p. 198, Laws 1869, supra.]
If the provisions of this section contravene those of section 23, article 2, of our Constitution, defendant has been put twice in jeopardy and we must discharge him. For whatever the common law may be, or has been; whatever the rule may be in other states upon their variant constitutional provisions, we come back at last to our own Constitution. For, says Bishop, in
The peculiar provision of our own Constitution, which is in pari materia with that of South Carolina on this point, seems to have been lost sight of in the adjudged eases. This may be explained, possibly, in part by the fact that our Missouri cases dealt with the matter of former jeopardy at first hands, and not in relation to the constitutionality of a statute designed to further and expedite trials and to eliminate outrageous miscarriages of justice by attenuated technicalities. That this is the matter presently in hand must not be left out of mind. For granting, arguendo, the similarity in law of the ease of assault and battery with that of assault with intent to kill; the jurisdiction of the court and the right of the officer who began the misdemeanor case to likewise legally begin a prosecution' for a felony (which section 27, p. 404, Laws 1909, forbids), we yet have before us the mandate of the or
Similar to the statute under discussion here, are the statutes of a number of states authorizing the entry of a nolle prosequi in case of a variance, or even permitting a second indictment and trial where an acquittal has happened on account of a variance, and which statutes are held not repugnant to the prohibition as to jeopardy. [People v. McNealy, 17 Cal. 332; State v. Kreps, 8 Ala. 951; People v. Oreileus, 79 Cal. 178.] But, of course, the distinction drawn arises from the lack of'identity of the offenses.
It will not be lost sight of that the St. Louis Court of Criminal Correction has as well the jurisdiction to hold preliminary hearings in felony cases, as it has, to try and finally determine misdemeanors. The effect of the section under discussion is to provide an easy and expeditious method of changing from the trial of a misdemeanor case to the holding of a preliminary examination in a felony case whenever the facts are found to warrant the change. Such change entails no hardship upon the defendant which is not offset by the benefit accruing to society, since the matter of taxing the additional costs which the proceeding entails can be regulated by the courts under well settled rules for taxing costs.
We concede the great danger of encroaching upon the fundamental guaranty against being put twice in jeopardy, which would be encountered in saying broadly that in all cases either an acquittal or a conviction (State v. Hatcher, supra) must be had before a jury "before jeopardy will be said by us to attach. Such a
In the case of Stoner v. State, 7 Ind. App. 620, it was held that defendant had not been put twice in jeopardy, by reason of his being put upon his trial for an assault and battery, which trial was halted, in a sense, by the verdict of the jury that they found defendant guilty, but that a fine of twenty-five dollars, which was the utmost fine which a justice’s court had jurisdiction to assess, was inadequate as punishment. Thereupon, pursuant to a statute of Indiana, which so provided and permitted, the justice of the peace held defendant in bail to answer such felony charge as should be thereafter preferred against him in the circuit court. Upon appeal, after conviction of such felony, it was held that jeopardy had not attached for the reason that the justice’s court had no jurisdiction to try defendant for a felony. The Indiana statute, upon which the case turned, reads thus:
*245 “Such, justice or jury, if they find the prisoner guilty of a misdemeanor, shall assess his punishment; or if, in their opinion, the punishment they are authorized to assess is not adequate to the offense, they may so find, and, in such case, the justice shall hold such prisoner to hail for his appearance before the proper court, or commit him to jail in default of such bail. ’ ’
The applicable provision of the Indiana Constitution is’ in all respects like that of Nebraska, quoted, supra. While the facts in these cases are stronger by far than those in the instant case, yet it is obvious that there yet lacks something of analogy, by reason of our decisions; since, while it was said in the case of State v. Huffman, 136 Mo. l. c. 63, that a conviction for an assault and battery would be no bar to a subsequent trial upon the identical facts for an assault with intent to kill, it was yet held in a later case in the same volume that a conviction for assault and battery was jeopardy and did bar a subsequent trial when set up by plea against a prosecution for assault with intent to kill, based upon an identical occurrence. [State v. Hatcher, 136 Mo. l. c. 643.] This compelling similarity, however, does inhere: That, in the cases of Stoner v. State, supra, and Larson v. State, supra, just as in the case at bar, the cases were taken from the court which tried the misdemeanors (which in all three cases had jurisdiction both to try and finally adjudge misdemeanors, and to hold preliminary examinations), after the jury was sworn, but before judgment in the misdemeanor cases was rendered.
The case of People v. Hunckeler, supra, is not in point. For there the defendant was placed on trial for manslaughter in the district court of San Francisco. After the taking of all evidence on both sides was concluded, the trial court, on motion of the State, without defendant’s consent, dismissed the jury and ordered defendant held so that a charge of murder
“If it appears by the testimony that the facts proved constitute an offense of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed or continued on, or admitted to bail to answer any Mdictment which may be found against him for the higher offense. If an indictment for the higher offense is found by the grand jury impaneled within a year next thereafter, he must be tried thereon, and a plea of a former acquittal, to such last found indictment, is not sustained by the fact of the discharge of the jury on the first indictment.”
The defendant Hunckeler was- afterwards tried for murder, and being convicted of manslaughter, appealed upon the g'round that he had been twice in jeopardy,- notwithstanding the statute, which he attacked as unconstitutional, claiming that it violated section 8 of article 1 of the Constitution of California, wMch provides that “no person shall be subject to be twice put in jeopardy for the same offense.” The Supreme Court of California, holding defendant’s plea for former jeopardy good, among other things, said:
“This language [of the California Constitution] is more than the equivalent of ‘no person shall be twice tried for the same offense.’ [1 Bishop, Cr. L. 1018.] A defendant is placed in apparent jeopardy when he is placed on trial before a competent court and a jury impaneled and sivorn.”
We italicize the words which make upon the facts whatever distinction exists between the instant case and the Hunckeler case. The broad distinction created by the variant wording of their constitution and ours has already been noted at length. The district court
More nearly in point, and upholding the view we here take in broad principle, are the cases of State v. Littlefield, 70 Me. 452; State v. George, 53 Ind. 434; State v. Hill, 122 La. 711; Com. v. Harris, 8 Gray, 470; and Com. v. Sullivan, 156 Mass. 487.
Therefore, being mindful of the rule that we should not declare a statute unconstitutional unless we find and believe it to be so beyond a reasonable doubt (State v. Baskowitz, 250 Mo. 82; State v. Thompson, 144 Mo. 314), and the matter of jeopardy being here wholly referable to this statute, which statute we are unable for the reasons given to declare invalid, under the provisions of our Constitution, we disallow the point to the defendant.
II. Defendant also contends that error was committed in refusing to permit Dr. Breibaeh to testify. Defendant tells us in his brief that he offered Dr. Breibaeh in order to show “the physical condition of the wound” inflicted by defendant upon Eosenthal, the prosecuting witness. The record does not bear out the contentions of defendant’s learned.counsel as to the object with which Dr. Breibaeh was offered. There is not in the record a word even from which the purpose of calling Dr. Breibaeh may be inferred. He was called by defendant; he said he was a physician; it was developed by the questions that he had been
Other matters are suggested, but having examined them, we find nothing novel urged, or any error rising to a stature meet for reversal. Let the case be affirnaed.