Defendant, convicted in division one of the criminal court of Jackson county of rape and his -punishment fixed at death, has appealed. He was jointly charged with Oscar Harrison and others, but a severance was -granted to the several co-indictees, and they were separately tried.
The case of Oscar Harrison came to this court on appeal, as did likewise the case of one Maurice Lewkowitz, who it seems was separately indicted, but who was present at the identical time, act and place, taking part in all of the matters and things which it is charged defendant participated in. The facts of the alleged rape as the evidence shows them to be, are unutterably bestial and indecent. They are set forth in full in the case of State v. Harrison, 263 Mo. 642, and in the case of State v. Lewkowitz, 265 Mo. 613. The student of criminology and of the law and the morbidly curious may read them there. They have no necessary place
The trial began on March 31, 1914, which seems to have fallen upon a Tuesday. It continued on trial for five days. When the usual adjourning hour came on Saturday afternoon, April 4, it was not yet finished. A night session was held and the case went to the jury, it would appear, late Saturday night. The jury came in with their verdict at the hour of 11:45 p. m. of said Saturday night, which was the last juridical day of the January term, 1914; for by statute the April term began on Monday, April 6, 1914. The learned trial judge received the verdict when it came in.. Whether he adjourned court then at once, or merely quit till Monday, the record does not show; but the record does show that he opened his division of the criminal court on Monday, April 6, 1914, in the April term, which term we judicially notice began on that day. The motion for a new trial herein was filed on April 9, 1914, but the court nevertheless considered it and it was treated in all procedural ways and manners as if the entire case had been in fact tried at the April term, 1914, instead of at the January term, 1914, as the fact was.
Was this motion untimely filed so as to preclude our review? If it was and without fault of defendant,, is he for that entitled to a new trial? These are the points now vexing us. To their further elaboration and consideration the below brief discussion will be devoted.
OPINION.
There is no dispute (but on the contrary it is admitted) that the jury came in with their verdict fifteen minutes before midnight, to-wit, at the hour of 11:45 p. m., of Saturday, April 4, 1914; the same being the last fifteen minutes of the last hour of the last day of the January term of the criminal court of Jackson county. There was then left, by statutory limitation but fifteen minutes of secular time — for we exclude the Sabbath, which is dies non — till the end of the January term and the beginning of the April term of said court. [Sec. 4214, R. S. 1909.] Views of sane men who know any law at all will not differ as to the fact that fifteen minutes is not sufficient time within which to prepare and file a motion for a new trial in a case which it took five days to try and wherein the record consists of 737 pages. Even in the face of such a hardship as this does the statute when viewed in the light of the history of its enaction and amendment, allowr a motion for a new trial to be filed after the end of the term at which the case was tried and the verdict rendered. If it. cannot be filed then, and thus without defendant’s fault,' the circumstances preclude its being sooner filed, shall' defendant lose his statutory right to appellate review? This in the last analysis is the concrete question confronting us. The statute reads thus:
The part of this section which we have italicized was added in 1909. [Laws 1909, p. 461.] Prior to the amending of this section and on July 13, 1907, this court had decided the case of State v. Brown, 206 Mo. 501, wherein the facts were that defendant Brown was found guilty in the criminal court of Buchanan county of murder in the first degree and his punishment fixed at death. The regular judge being disqualified, a special judge sat to try the case. The verdict in the case came in late one night — between nine and ten o’clock — and on the following morning the regular judge took the bench and upon being erroneously informed that defendant did not desire to take steps toward an appeal, adjourned the ¡court till court in course. At the next regular term of the Buchanan Criminal Court, which convened seven days after the coming in of the verdict of guilty, defendant filed his motion for a new trial and thereafter proceeded duly to appeal to this court. It was held: (1) that the court below had no power to consider or pass on defendant’s motion for a new trial, since it was filed out of time; (2) but that defendant nevertheless had the right to have the rulings of the trial court reviewed here on appeal; (3) and that defendant could not be deprived of his right to the solemn opinion of this court thereon, no laches being shown upon his, or upon his counsel’s, part.
Whether the ruling in the Brown case furnished the reason for the amendment of 1909 noted above, we need not inquire. If it did, it yet in nowise served
In the Brown case, as here in the instant case, the merits of the motion for a new trial seem to have been considered by the trial court. Notwithstanding this, we refused to consider them in that case, since such consideration was without warrant of law, then as now, and on-this point, and most appositely upon another, the learned judge who wrote the opinion of the court in that ease, said at page 507:
“Therefore, in view of the enormity of the crime of which the defendant was found -guilty, and the fearful consequence which must follow his conviction if suffered to stand, regardless of the evidence or of the facts (upon which we form or express no opinion), and in order that the defendant may not suffer any possible injustice, but be permitted to avail himself of every right which the law allows him, we reverse the judgment and remand the cause for further trial.”
II. Moreover, the Constitution guarantees to defendant that he shall not be deprived of his property, or his liberty, or his life without due process of law. [Sec. 30, art. 2, Constitution 1875.] If he had no opportunity to file a motion for a new trial, as we must concede he did not have, but notwithstanding this his life be taken, it will have been taken without due process of law. For while the right of appeal is not essential to due process of law (Reetz v. Michigan, 188 U. S. l. c. 508), yet if an appeal- be allowed to some persons and not to all persons similarly situated, such deprivation of the right to an appeal is equivalent to the denial of due process of law, for due-
Arguendo, but persuasive in this view for another reason, is the fact that just twenty-one days before the jury rendered this midnight verdict there was passed with an emergency clause an act designed to prevent in the trial of criminal cases the identical legal snarl now here confronting us. [Laws 1913, pp. 217 and 218.] Conceding that if this act be constitutionally valid (touching which we do not decide), yet if under the facts here by reason of the requirements that the causes to which it applied should be “pending trial;” that “the trial thereof shall be in actual progress,” and of others which the curious will note upon examination, it does not apply to, or aid the case as here made; nevertheless it would have applied, if the learned trial court had seen fit to follow its provisions at the usual hour of adjournment on Saturday afternoon, instead of proceeding with the trial to a conclusion and till the midnight hour. If this act does not offend the Constitution, a following of the letter or even the spirit of its provisions would have served to save the defendant from the serious predicament in which he now stands. The failure to order the sitting and rising of the court upon the trial of this ease in accordance with this statute, and the lapsing of the term by statutory limitation in fifteen minutes after the coming in of the verdict have served to deprive the defendant of the opportunity to have our opinion upon the merits of the case upon the question of whether he had a fair trial.
For the errors of the court in failing so to control its sittings and adjournment as to afford defendant a like opportunity with others similarly situ
While the record is physically before us, yet by reason of the matters set out above it is not before us in such wise as will allow us to review it. And this condition arose as we see it without defendant’s fault. So, while we may not pass upon what the bill of exceptions contains, as the case must be retried we suggest that upon the next trial the testimony of the witness May, as to alleged statements of some unknown person to another not satisfactorily identified as the defendant, about an unknown subject-matter, ought not to be offered. There was not, in short, any sufficient identification either of the persons speaking, or of the matter about which they were speaking, even if the whole conversation heard by May was not, as seems highly probable, res inter alios acta and wholly inadmissible against defendant. [State v. Newcomb, 220 Mo. 54.] Neither in our view was sufficient time given defendant to prepare for trial, the enormity of the charge considered. A slight expense to Jackson county (and this was the excuse largely urged) ought not to be weighed in the scales against a man’s life. Likewise, the able and zealous representatives of the State who prosecute her pleas in this behalf, ought to be made to stay within the record in their arguments. Rarely have we read such able and eloquent arguments as were made in this case; but also rarely, if ever, have we read arguments which in .inflammatory eloquence travelled so far afield from the facts in the case. Once upon the trial we note the learned judge nisi threatened that unless counsel refrained from acts which
We conclude therefore that while the present development of the English language is inadequate to express the unspeakable bestiality of defendant’s conduct as the prosecuting witness details it (for if she speaks truth, he could well have been a teacher of indecency to the brutish lechers of Sodom and Gomorroh), yet if he be as guilty as she says he is, so much the more does he deserve a fair trial, lest the whip and scorn of our abhorrence shall drive us to mob Mm under the guise and empty shell of justice. If he had been fairly tried we do not tMnk that even under the proof of his abandoned beastliness the jury would, upon the partly uncorroborated word of a self-confessed adulteress have assessed against Mm, as they did, the extreme penalty of the law. For brutish bestiality is not a capital crime; sodomy is not capital; rape only of the acts proved is capital, and right-minded men and women have always and ordinarily will always justly weigh the degree of culpability in the scale of the victim’s chastity, regardless of the harsh rule of necessity which forbids us in law to draw any distinction between acts of rape on account of the victim’s lack of prior chastity. So we think the extreme penalty here assessed can be rationally accounted for only upon the view that the things we mention (and wMch we would characterize as the very gravest errors, if we could but reach them for review) largely contributed to it. To say that he is guilty and therefore it makes no difference how he was tried, begs the question, and is but an argument favoring the return to primitive justice, wMch first hangs and then investigates. If the lat
Being mindful of this duty and being thoroughly convinced that to take the life of this man, upon this conviction, the condition of this record considered, would be to judicially mob him under the mere empty form of law, we reverse and remand the case for a new and a fair trial.