State v. Finley
172 S.W. 1162
Mo. Ct. App.
1915
Check Treatment
ELLISON, P. J.

In State v. Rawlings, 232 Mo. 544, section 7226, Bevised Statutes 1909, was declared to-be unconstitutional. In September, 1909, defendant wasconvictedinthe circuit court of Callaway county for violating that section in ordering intoxicating liquors as agent for another. He appealed to the Supreme Court on the ground, among other things, that the statute was unconstitutional. That court decided, (May 23, 1911) that a constitutional question had not been *73properly raised and that jurisdiction, therefore, was in this court and transferred the case. This court after-wards heard the appeal and affirmed the judgment (February 19,1912,162 Mo. App. 134). It was a part of the judgment against defendant 'that he should pay a fine of $600, and on receipt of the mandate of this court affirming the judgment, the circuit court issued an execution which was levied by the sheriff on defendant’s property. He then moved to quash the execution on the ground that the statute aforesaid upon which the judgment of conviction was founded was unconstitutional. The circuit court overruled the motion and defendant appealed to this court. This court-transferred the case to the Supreme Court on the question “Whether defendant has a right secured to him by the Constitution, to raise a constitutional question on his motion to quash an execution” in the circumstances stated. That court concluded that a question of a construction of the Constitution was not involved, 259 Mo. 414, 168 S. W. 921, and retransferred the case to this court.

The statute aforesaid, for the violation of which defendant was convicted, haying been declared unconstitutional, we will regard it as not a law. The question remaining is, can a defendant in a criminal case attack a law, after judgment and upon execution, on the ground that it is unconstitutional? The question has been answered in the affirmative by the Supreme Court in Ex Parte Smith, 135 Mo. 223. At page 229, the court said: “And if it be true, as must be true, that an unconstitutional law is no law, then its constitutionality is open to attack at any stage of the proceedings and even after conviction and judgment; and this upon the ground that no crime is shown and therefore the trial court had no jurisdiction; because its criminal jurisdiction extends only to such matters as the law declares to be criminal, and if there is no law *74making such declaration, or, what is tantamount thereto, if that law is unconstitutional, then the court which tries a party for such an assumed offense, transcends its jurisdiction and he is consequently entitled to his discharge, just the same as if the nonjurisdiction of such court should, in any other matter, be made apparent.” That ca.se involved the liberty of the party concerned, while here the immediate question relates to defendant’s property; but we can see no difference. The right to life, liberty and property are equally under the protection of the courts to see that neither is taken, in a criminal proceeding, without warrant of law. [State v. Julow, 129 Mo. 163; Ex Parte Neet, 157 Mo. 527, 537.]

It follows that the judgment must be reversed and cause remanded with directions to quash the execution.

All concur.