State v. Duestrow

70 Mo. App. 311 | Mo. Ct. App. | 1897

Biggs, J.

The contention is that the judgment against the appellant can not stand for the reason that the execution, under which the garnishment proceedings were had, was issued on a void judgment. The facts are undisputed. An indictment for murder was pending against Duestrow in the circuit court of Franklin county. Acting under the provisions of the statute (sections 4184, et seq.) the judge of that court directed an “inquiry” to be made as to the insanity of Duestrow. The investigation was had and the jury found that he was sane. A judgment for the costs of the investigation was entered against him. An execution was issued on the judgment and the appellant was summoned as garnishee. Thelatter resisted the garnishment, on the grounds that the judgment was unauthorized, and that the funds in its hands were not subject to garnishment.

Construction of statutes in It is conceded by counsel for respondent that Dues-trow is not liable for the costs of the insanity inquiry, unless there is a statutory warrant for it. ^ We repeat, as we have decided in several cases, “that the entire subject of costs, in both civil and criminal cases, is a matter of statutory enactment; that all such statutes must be strictly constraed, and that the officer or other persons claiming costs, which are contested, must be able to put his finger on the statute authorizing their taxation.” Ring v. Vogel, 46 Mo. App. 374.

DITy f fudgmem for costs against fnsaSftyTnqairy The common law1 practice permitted inquiries as to the insanity of a person accused of crime whenever the court had good reason to believe that he was of unsound mind. Our statute as amended in 1883 is founded on this rule of practice, and it makes it the duty of a trial judge to stop all further proceedings and direct an inquiry to be made into the condition of the mind of any person held under indictment before him, whenever he has good reason to believe that the mind of such'person is impaired to such an extent as to render him incapable of entering upon his trial. The amendatory sections make no provision for the payment of the costs of the inquiry, except where the accused is found to be insane. In such a case if he has property the costs "shall be paid out of his property by his guardian.” (Section 4185.) It is plain therefore that there is no warrant in the statute which authorizes the "inquiry,” for the judgment against DuestiW. We understand that counsel for the state concedes this, and that he rests his case on section 2920 of the statute, which reads: "In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made bylaw.” To sustain the judgment against Duestrow under this section, we must hold first, that the "inquiry” into the insanity of Dues-trow was a civil action, or proceeding, and, second, that the state was the prevailing party therein. What is a civil action 1 It has been defined to be "an action which has for its object the recovery of private or civil rights or compensation for their infraction.” 1 Bouv. Law Diet., p. 317. Stroud defines it to be “a process for the recovery of individual right or redress of individual wrong.” Stroud’s Judicial Decisions, p. 130. Rapalje says that it is “an action to enforce a private or civil right orto redress a private wrong.” Rapalje Law Diet., p. 213. Now, in the insanity inquiry was Duestrow seeking to enforce a right or redress a wrong? Or can it be said that the state was seeking to enforce a right against him, or to redress a wrong that he had committed? These are the tests, and when they are applied the conclusion is unavoidable that such a proceeding can not be regarded or classified as a civil action.

Again, is it not unreasonable to hold Duestrow responsible for the costs of a proceeding which he did not start, and could not control or stop, upon the theory that he was a losing party? And is it not as equally illogical to say that the state under the circumstances was the prevailing party? The law in its humanity required the trial judge to order the “inquiry,” as he had good ground to believe that Duestrow was inshne, and when ordered it was the duty of the prosecuting officer to conduct the proceeding. This duty did not require him to assume the role of a prosecutor, but to act indifferently, that is, without prejudice, for it was his sacred duty as an officer to see to it that Duestrow was not tried and punished if he was of unsound mind. Hence the verdict of the jury against the insanity of Duestrow did not make the state a prevailing party in a legal or technical sense. The verdict only determined that Duestrow was in a proper condition of mind to be put on trial for the crime with which he was charged. Whether the subsequent judgment of conviction against Duestrow carried with it the costs of the insanity inquiry, is a question outside of the record, and hence we express no opinion on that subject.

■ It follows that the judgment against Duestrow was unauthorized and that the execution and all proceedings thereunder are nullities. Therefore the judgment against the garnishee will be set aside and the garnishment proceedings dismissed.

All the judges concur.