42 Mo. 119 | Mo. | 1868
delivered the opinion of the court.
This was a prosecution instituted against the respondent, in the Circuit Court for Cooper county, under the provisions of an ordinance adopted by the constitutional convention of the State on the 8th day of April, 1865. That ordinance was adopted simultaneously with the constitution framed by that body, and contained the provisions that were deemed necessary and proper for putting that instrument in force.
There was a demurrer to the indictment, which was sustained, and judgment given for the respondent. This judgment was affirmed upon an appeal taken to the proper district court, and the case is now brought here by appeal on the part of the State. All of the questions in the case therefore arise upon the demurrer-
The first two causes of demurrer contain the allegation that the third section of the second article of the constitution of this State is a bill of attainder and an ex post facto law,'within the meaning of the constitution of the United States, and that it is therefore void and of no effect.
The case of The State v. Cummings, decided by the Supremo Court of the United States, is relied upon as an authority broad enough to cover every class of cases to which that section was intended by the convention to apply.
It is sufficient to say that the authority of that decision has been fully recognized and acted upon by this court in all cases where the right to exercise any trade, calling, or profession, with
The reasons for that distinction were very fully stated in the case of Blair v. Ridgley, 41 Mo. 63, and need not be repeated here. There has been no interpretation of the section in question by the Supreme Court of the United States since the last decision referred to, and we are unable to find any reason in the present case to change our views of the law. Aside from the general causes of demurrer assigned, there are several of a specific character, all of which go to the sufficiency of the facts averred, as well as to the existence of any law creating and defining the offense as charged in the indictment. The convention might (if it had been deemed proper to do so) have declared the constitution framed by it in full force and effect without making provision for its submission to the voters of the State.
As the representatives of the people, clothed with an authority so ample as that, certainly its power to prescribe the means by which it was thought best to ascertain the sense of the qualified voters of the State upon that instrument cannot be seriously questioned. The ordinance had in itself every element necessary to give it legal force and effect, and was therefore binding upon the voter. It is no objection to it that the terms of the oath required were not all contained in the ordinance itself. They were referred to in such manner as to indicate most clearly what was required of the voter, and it is not possible that he could have been misled or deceived in any way. The offense created by this ordinance is not the doing of any of the acts enumerated in the section of the constitution to which it refers. > It consists simply in falsely taking the prescribed oath. If the oath should be false as to any one of the acts enumerated in the third section of the second article, then the offense would be complete, and the party, upon conviction, should be adjudged guilty of perjury, and punished therefor in the manner prescribed by law.
This provision has reference solely to the manner and extent of the punishment as now fixed by law for the crime, as defined by statute, and to nothing else. It is á separate and distinct offense,
It is insisted, on the part of the respondent, that the entire oath should have been set out in the indictment. The necessity for this is not perceived. The oath embraced several things necessary to constitute a qualified voter.
It might be true that a person applying to vote under the provisions of the ordinance could safely take one part of the oath and not another. A part might be true and a part false. In such case, if the whole should be taken, the crime would consist alone in taking so much as was untrue, and it would only be necessary to set out so much as embraced the falsehood.
The case of Campbell v. The People, 8 Wend. 636, is, in all of its material features, similar to the one at bar. The judge, in delivering the opinion of the court, and upon this very point, uses the following language: “It cannot be necessary to set out the whole of the oath. Such parts of it as are alleged to have been false, and are material in the given case, are all that it can be requisite to state.” And so we think in this case. The principles of criminal pleading require no more than was done.
The judgment of the District Court must be reversed and the cause remanded to the Circuit Court.
