158 Mo. 36 | Mo. | 1900
Lead Opinion
This is an appeal from a judgment of the criminal court of Jackson county, at Kansas City, imposing a fine of $100 upon the defendant, convicted in that court, upon the information of the prosecuting attorney, of a misdemeanor, in violating the. act of the General Assembly “approved May 16th, 1899,” entitled, “Department Stores in cities with 50,000 inhabitants or over.” [2 R. S. 1899, ch. 91, art. 18; Laws of 1899, p. 72.] The case was advanced and beard with the case of State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, in which that act was held to be unconstitutional. So that the only question for determination now in the case is, whether under the statutes of this State an appeal by the defendant will lie from bis conviction in that
In the act establishing the criminal court of Jackson county, it is provided that “appeals from final decisions and judgments of the court hereby established, and writs of error from the Supreme Court to said criminal court, shall be allowed and prosecuted in the same manner and with like effect in all respects as is provided by law in cases of appeals from or writs of error to circuit courts in criminal cases.” [2 R. S. 1899, p. 2566, sec. 3; Laws 1811, p. 110.]
Misdemeanors may be prosecuted in the circuit courts of this State either., by indictment or information (R. S. 1899, chap. 16, art. 3), and in that article, by sec. 2482, it is provided, that “the trial and all proceedings upon any information filed in a court of record shall be governed by the law, and practice applicable to trials upon indictments for misdemeanors” * * * ' and by section 2696, article 10, of the same chapter, it is provided, that “in all cases of final judgment rendered upon.any indictment, an appeal to the Supreme Court shall be allowed to the defendant if applied for during the term at which such judgment is rendered.”
Chapter 16, entitled “Criminal Cases, Practice and Proceedings,” constitutes our code of criminal procedure, and provides the practice in such cases from the incipient charge through arrest, preliminary examination, trial in the circuit court, review in the appellate court, to the final disposition of the case by execution. Section 2482 and section 2696 of that chapter here placed in juxtaposition, according to well-recognized rules of statutory construction must be read in connection with each other, and with the whole code or system of which they form a part. And as
By section 14, article 13, of tbe Constitution of 1820, it was provided “that no person can, for an indictable offense, be proceeded against criminally by information, except in oases arising in tbe land or naval forces, or in tbe militia when in actual service in time of war or public danger, or by leave of tbe court, for oppression or misdemeanor in office,” and this provision in the same language, remained intact in tbe organic law (Constitution of 1865, art. 1, sec. 24), until tbe adoption of tbe Constitution of 18 Y5, when it was changed to read as follows: “That no person shall, for felony, be proceeded against criminally, otherwise than by indictment, except in cases arising in tbe land or naval forces, or in tbe militia when in actual service in time of war or public danger; in all other cases, offenses shall be prosecuted criminally by indictment or information as concurrent remedies.” [Constitution 18Y5, art. 2, sec. 12.]
By tbe statutes first enacted under tbe Constitution of 1820, all misdemeanors were indictable offenses. [1 Revised Laws 1825, p. 314, chap. 2, and p. 139 et seq.] But no provision was made for an appeal by tbe defendant from a conviction of a criminal offense in tbe circuit court in any
Another change in the existing law was made in the revision of 1835, by the adoption of the following provisions (R. S. 1835, p. 372, sec. 1): “Hereafter, no assault, battery or affray, shall be indictable; but all such offenses shall be prosecuted and punished in a summary manner, before justices of the peace, as hereinafter provided.” And section 2 reads: “The jurisdiction of justices of the peace shall not extend to trial or punishment in any case of riot, rout, or unlawful assembly, nor to any assault or battery which, by the then existing laws, may be punished by imprisonment, or corporal punishment, or by a fine exceeding one hundred dollars, but all such offenses shall be punished by indictment.”
The subsequent sections of said enactment provide for the prosecution of this petty class of offenses thus limited upon view of the justice or upon written complaint and affidavit of a citizen, and for an appeal to the circuit court upon conviction before the justice. Leaving out of view certain
Our attention is called, however, by the Attorney-General to four cases which he contends militate against this construction. In the first of these, State v. Clipper, 142 Mo. 474, it was held that the State was not entitled to an appeal in a prosecution on information. The ruling involved the construction of sections of the statute other than those now in question, and is not in point. In the next case, State v. Carr, 142 Mo. 607, it was held that the State is not entitled to an appeal or writ of error on the quashing of an information, and this case, like the former, turned upon the construction of sections of the statute other than those now under consideration, and is not in point. The same may be said of the third case, State v. Cornelius, 143 Mo. 179. These cases treat of the right of the State in criminal prosecutions, but do not touch the right of the defendant in such prosecutions. The fourth case, State v. Brown, 153 Mo. 578, is however directly in point, for in that case it was held that an appeal would lie for the defendant upon a conviction in the circuit court of a misdemeanor on information. This ruling was based solely on section 4277, Eevised Statutes 1889, now section 2696, supra, treated independently and without any consideration of section 4062, Eevised Statutes
Dissenting Opinion
(dissenting). — I dissent from the opinion in this case for the following reasons:
First: The case of State v. Brown, 153 Mo. 578, holding that an appeal by the defendant will not lie from a conviction on an information is entirely consistent with the cases of State v. Carr, 142 Mo. 607, and State v. Cornelius, 143 Mo. 179, which hold that an appeal by the State will not lie when an information is quashed or adjudged insufficient.
Second: Section 2696, Revised Statutes 1899, allows a defendant an appeal from a conviction on an indictment. Section 2709, Revised Statutes 1899, allows an appeal to the State if an indictment is quashed or adjudged insufficient on demurrer. Construing these sections this court held in the Carr and Cornelius cases, supra, that they applied only to indictments, and that this court could not read the word “information” into the statute, so as to allow an appeal to the State when the information is quashed or adjudged insufficient on demurrer, and in the Brown case, supra, that no appeal lies by defendant from a conviction on an information.
An appeal did not exist as to either party at common law. It is wholly immaterial that a right of appeal was granted to a defendant long before the State was given a right of appeal, when the indictment is quashed or adjudged insufficient, for the right exists now as to both in case of indictments, and if section 2482 gives the same right to a defendant to appeal from a conviction upon information that section 2696 gives him in case of a conviction on an indictment, it logically and irresistibly follows that section 2482 also gives the State the same right to appeal, if the information is quashed or adjudged insufficient on demurrer, that section 2709 gives the State if an indictment is quashed or held insufficient on demurrer.
It also logically follows that if the Brown case is overruled, the Carr and Cornelius cases should also be overruled. To be consistent all three cases should stand or be overruled. It will not do to say that the right of the State to appeal is not involved in this ease, and hence it is not necessary to determine that right now, for it is as much the duty of this court to be consistent as it is to dispose of any particular case or question — as much its duty to- prevent confusion by perspicuity, harmoniousness and comprehensiveness of decision as it is to decide any ease. Technically and by strict construction, the Brown, Carr and Cornelius cases are properly decided. But if section 2482 reads the word “information”
Dissenting Opinion
([dissenting.) — From the conclusion announced in the majority opinion I dissent. The Attorney-General has filed an admirable brief in this cause, in which he collected'a great array of authorities, everyone announcing in terms or in effect, the principle that as an appeal is purely a right and a creature of the statute, that no such right or creature exists unless it be affirmatively granted by the statute which creates it.
None of these authorities, though directly in point, have been cited, noticed or discussed in the majority opinion. It is sometimes easier to ignore a long array of pointed and pertinent authorities, than to meet them and overthrow them by argument.
It has been asserted in the majority opinion that in the State v. Brown, 153 Mo. 578: “This ruling is based on section 2696, supra, treated independently and without any consideration of section 2482.”
What foundation there is for this assertion will be found when you examine State v. Brown, supra, where direct reference is made to State v. Carr, 142 Mo. 607, where it is very plainly and distinctly said, on a motion for rehearing: “Now, as to the second ground suggested, to-wit, that our decision is in conflict with an express statute, to-wit, that section which provides that ‘the trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictment for misdemeanor.’ [Revised Statutes 1889, sec. 4062.] This section evidently relates to trials and their ordinary incidents
Having, when the opinion in State v. Carr was written so recently before that, construed and passed upon section 4062, now section 2482, in Carr’s case, as just pointed out above, it did not seem necessary to do more than to cite that case in Brown’s case — inasmuch as it belongs to ruminants alone to regurgitate their food; man does not. So that when you turn to Carr’s case, you discover that instead of the ruling in Brown’s case, being “based solely on section 2696, treated independently,” etc., section 2482 was considered and referred to, by referring to Carr’s case, where that section is discussed. Besides, it shall not escape observation, that while section 2482, relating to informations, is located in article 8, page 664, Revised Statutes 1899, section 2696 treating of indictments, is located in article 10, page 698, Revised Statutes 1899, entitled, “Appeals and Writs of Error ” and section 2709, of the same article, is the one which grants the State an appeal; and the provisions for granting the State or an individual an appeal or writ of error, are also to be found located in the same article, and nowhere else. Is it not rather odd that the Legislature during so many revisions as our-statutes have undergone, have so sedulously confined appeals and writs of error to article 10, where indictments alone are spoken of, and never said appeal or writ of error to in-formations 1 Is this the result of accident, or of well arranged and predetermined design?
But no matter in what originating, it is certain from all authorities that no appeal lies except where expressly granted.
Brief of Attorney-General.
Counsel for appellant urge that because in many instances appeals have been taken from judgments of conviction on misdemeanors, and the Supreme Court has passed on the cases, and the jurisdictional question has been passed sub silentio, therefore this court should hold that it now has jurisdiction. In other words, that because this court has assumed jurisdiction heretofore, that it ought not now to admit its error, but to maintain it was right by still assuming jurisdiction.
The Federal Supreme Court has had this question of jurisdiction being passed sub silentio before it, and has rendered decisions upon the effect of a court assuming jurisdiction where none existed.
In the case of Cannon v. United States, 116 U. S. 55, the Federal Supreme Court, without objection, decided upon the merits of a writ of error to the Supreme Court of the territory of Utah sued out by one convicted of' a crime which was neither bigamy nor polygamy, nor punishable with death, but in which case the defendant below had been convicted under the statute and had been sentenced to six months imprisonment and to pay a fine. The statute under which the defendant was convicted was one directly amending the statute against bigamy or polygamy in the territory of Utah. The statute which was- amended allowed an appeal on a conviction for bigamy or polygamy.. The amendment to the statute created an offense described in the statute of cohabiting
The counsel for the appellant in that case urged that the court had taken jurisdiction of the case of the United States v. Cannon, 116 U. S. 55, and affirmed the judgment of conviction under the same aet of 1882, but the court said: “The question of jurisdiction was not considered in fact in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs........ But as the.......want of jurisdiction is clear we have decided to vacate our judgment and recall the mandate and dismiss the writ of error for want of jurisdiction.”
In tbe case of United States v. Sanger, 144 U. S. 310, the Supreme Court again decided tbat no appeal could be’ taken in a criminal case unless expressly authorized by a statute. Tbe court in this case cited and approved tbe opinion heretofore referred to in 118 U. S. 346-354, bolding tbat tbe fact tbat a court may bave passed upon cases in wbicb it bad no jurisdiction did not authorize it to continue to do so.
In 1803 tbe Federal Supreme Court, no objection being made, took jurisdiction of a writ of error sued out by tbe United States to tbe Circuit Court for tbe District of Columbia in a criminal case. [1 Cranch, p. 252.] But in 1805, in another case, tbe United States Supreme Court, upon full argument and consideration, held tbat it bad no jurisdiction of a writ of error in a criminal case and overruled tbe case in 1 Cranch, p. 252. Chief Justice Marshall, speaking for tbe court, said: “No question was made in tbat case (referring to tbe case in 1 Cranch, p. 252), as to tbe jurisdiction. It passed sub sihntio and tbe court does not consider itself bound by tbat case.” [United States v. Moore, 3 Cranch, pp. 159-172; United States v. Sanger, 144 U. S. 144.]
Can it be said this court has sustained the right of appeal from conviction on an information in many cases, when an examination of the very cases cited show the question was not even raised? The cases cited by counsel for appellant
“Do we violate the doctrine of stare decisis by now correcting the mistake and going back to the well-established doctrine which that case has disturbed %.......The conservatism that would make the instance of to-day the rule of to-morrow, and thus cast society in the rigid moulds of positive law in order to get rid of the embarrassing but wholesome diversities of thought and practice that belong to free, rational and imperfect beings; and the radicalism that in ignorance of the laws of human progress and disregard of the rights of others would lightly esteem all official precedents and general customs that are not measured by its own idiosyncrasies — each of these extremes always tends to be converted into the other, and both stand rebuked in every volume of our jurisprudence.
“And the medial aspect of the doctrine stands everywhere revealed as the only practical one. Not as an arbitrary rule of positive law attributing to the mere memory of cases higher honor and greater value than belong to the science and natural instinct and common feeling of right: Not as withholding allowance for official fallibility and for the changing views, pursuits and customs that are caused by and that indicate an advancing civilization:......
*53 “When, the varied surface of this earth is changed into a dead level and the ocean waves are still, then man will need another habitation. And when the variety of human action and development is subjected to judicial and legislative prescription, and the rule of man’s free and educated reason is prescribed with all its improving diversities, and all reasoning becomes illegal......... then man will need another jurisprudence and another legislation, without perhaps being capable of enjoying them.”
Our own Supreme Court, volume 142, page 611, in an opinion in which the whole court concurred, rendered at the October term, 1897, decided that where a question of jurisdiction was passed sub silentio in a case, that the case had no authoritative value as a precedent. ' The following language was used by the court when it was urged that the court had taken jurisdiction of a similar case in 107 Mo. 1, to-wit: “But there the objection we took in this case to the State’s bringing error upon the quashing of an indictment and only on quashing an indictment, was entirely unnoticed, either by court or counsel, and consequently the ruling in that case has no authoritative value in the case at bar.” [State v. Carr, 142 Mo. 611.]
Appeal is purely of statutory origin and is a statutory right. No right to appeal exists except where the statute expressly authorizes it, and an appeal is never allowed unless some statute has expressly conferred the right thereto. [State v. Rowe, 22 Mo. 328; In re Bauer, 112 Mo. 231; City of St. Louis v. White, 99 Mo. 475; State v. Brown, 55 S. W. Rep. 76; State v. Woodson, 128 Mo. 514; State v. Clipper, 142 Mo. 474; State v. Carr, 142 Mo. 607; 142 Mo. 179; Southern Statutory Construction, pp. 326, 328; McGuire v. Ass’n, 62 Mo. 346; 1 Bishop’s Crim. Procedure, sec. 1254; Floyd v. State, 7 Tex. 215; Ex parte Kearney, 7 Wheaton 38; 6 Ind. 423; 7 Crunch 708; 4 Barnwell & Anderson’s Reports,
In the case of McKane v. Dunston, 153 U. S. 687, the defendant had been convicted in the lower court in New York and appealed to the Supreme Court of the State, and the statute of New York provided that it was discretionary with the court whether a stay of execution pending the appeal should be granted. The court refused to stay the execution, and the defendant was sent to the penitentiary; he applied for a writ of habeas corpus and insisted that it was a violation of his rights under the Federal Constitution not to allow him bail pending his appeal. The Federal Supreme Court, in speaking of the right of appeal in this case, said: “An appeal from a judgment of conviction is not a matter of absolute right. Independently of constitutional or statutory provision allowing such appeal, a review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and- is not now, a necessary element of due process of law.” [McKane v. Dunston, 153 U. S. 687.] In 1821, in case of King v. Hanson, Court of King’s Bench decided that an appeal does not lie in a criminal case unless expressly given by statute. [4 Barnwell & Alderson’s Reports, p. 521.]
An appeal does not lie in any case in the absence of a statu
Express Jurisdiction.
The jurisdiction being conferred on an inferior court, the right of appeal from its decision must be expressly given. It will not be implied. [Excelsior Electric Co. v. Chicago Waifs’ Mission, 41 Ill. App. 112.]
Legislative Control of Statutory Right.
Where not granted by the constitution the right of appeal is purely a privilege 'and not a vested right. [Mayne v. Huntington Co., 123 Ind. 132; Davis v. Rupe, 114 Ind. 588; 102 Ind. 1; 41 Ill. App. 112; 41 Ill. App. 116; 7 Wallace (M. S.) 506; 47 Kansas 29.] Being a privilege and not a vested right, the privilege of an appeal pertains to the remedy and may be modified, abolished or revived by the Legislature at discretion. The Supreme Court of Illinois, referring to the right of appeals, uses the following'language: “It may be well said that an appeal will not lie in a given case because there -is no statute allowing it. It can not be so said of the writ of error. One is a favor granted by a statute, the other is a right in all cases civil and criminal.” [Hammel v. People, 32 Ill. pp. 446-464.]
Courts Correct Existing Errors When Aware of Them.
The rule of stare decisis does not apply. When by a long course of decisions a rule of property has been estab
The Appellate Jurisdiction of the Supreme Court of Missouri.
The method of procedure in appellate practice in. the Supreme Court of Missouri depends on statutory provision. The appellate jurisdiction of the Federal Supreme Court rests wholly on the acts of Congress. [144 U. S. 319.]
The laws of 1825, p. 139, gave the defendant the right of election to have his case, upon information, tried, either before the justice of the peace or in the circuit court, even though the prosecution was begun before a justice of the peace upon an information. This statute of 1825 also expressly authorized an appeal. The statutes of 1835 enlarged the jurisdiction of the justice of the peace, but did not provide for an appeal from a conviction on an information to the Supreme Court, but did, specifically, provide that certain classes of misdemeanors should not be indictable, but should be prosecuted by information, and in this same criminal code of 1835 first appeared any provision for statutory appeal to the Supreme Court in criminal cases, and the statute, enacted as part of the criminal code of 1835, specifically and clearly limited the right of appeal in criminal cases to proceedings upon indictment. This is the provision of 1835: “In all cases of final judgment rendered upon an indictment an appeal to the Supreme Court shall be allowed, if applied for during the term at which such judgment is rendered.” This same provision in the same language exists in our statute of 1899. [Revised Statutes 1835, p. 498.]
Would anyone pretend that, looking at the criminal code of 1835, any provision was made for an appeal from a conviction upon an information ? Surely not. Counsel for appellant concede that if the Supreme Court of Missouri had, in 1835 or 1840, thus construed this statute to mean that no appeal was allowed from a conviction on an information, the decision would have been correct. Was any decision rendered soon or any time after the enactment of this criminal code of 1835 that construed the criminal code of Missouri of 1835 to authorize an appeal from a conviction on an information ? Counsel for appellant admit they can point to not one case so deciding. The criminal code of Missouri,
The exact language of the section of 1835, relating to appeals in criminal cases, appears in the Revised Statutes of 1899. Four decisions of our Supreme Court construing this statute and this criminal code have held that no appeal lies. Why is not a decision of the Supreme Court of Missouri, construing this act of 1835, just as binding now as it would have been in 1835, or 1840, or 1845, or 1850 ? Is not thecourt as able to construe it now as then ? Are the decisions now less entitled to binding force than they were then ? If a decision holding that no appeal existed from a conviction on an information, would have been correct in 1835 or 1840 (as counsel for appellant admit it would), why would it not be correct now? Four times this court has decided no appeal would lie in such a ease. Never has it decided otherwise. But counsel for appellant say the court has passed the question Sub silmiio so often that, although originally no right existed to appeal, yet now the court has lost power to correct its error. Only under the doctrine of stare decisis does a court ever get in this position. The counsel know the doctrine of stare decisis can not be invoked in the case at bar because no decision of the court exists holding that an appeal can be taken from a conviction on a misdemeanor. The only thing that counsel invoke is the faet that appeals have been taken, and no question raised. Therefore, counsel for appellant argue that the custom has grown into a law, and gravely assert that this “custom” should be repealed by a legislative enactment, and should not, although founded in error, be disturbed by this court. Are the customs running contrary to the express decision of this court to overrule the decisions of the court? Are customs of greater force in Missouri than the decisions of the highest court ? Is it the written opinion of this court that is the law, or is it the
Appeal — Right of.
An appeal previously took the whole case to a higher tribunal, there to be fully tried anew without regard to what was done in the lower court. In England appeals were confined to chancery, admiralty and ecclesiastical proceedings, while a writ of error was the only method of removing a common-law case for review to a higher court. The appeal in chancery brought the facts, as well as the law, before the Superior court, there to be tried de novo, while the writ of error in a case at common law brought up nothing for re-examination but the questions of law involved in the record of the case. This was the condition of the common law at the time of the annexation of the Louisiana Territory, and at the time of the admission of Missouri into the Union as a state. An appeal in a law case is purely a statutory right. [Finklenburg on Appellate Courts, p. 46.]
A declaration by statute that the right of appeal shall exist in certain cases denies, by implication, the right to appeal in all other eases. [Durrousseau v. United States, 6 Cranch, p. 312; Ex parte McCardle, 7 Wall. 506.]
At common law a writ of error lay as a matter of right in all civil cases following the common law, while the technical appeal existed only where expressly given by statute. [King v. Hanson, 4 B. & Ald. 519; King v. Stone, 6 East 514; Willis v. Lewis, 5 Irel. (N. C.) 14; Schooner Con. v. Woodward, 2 Ill. 511; Bevins v. Ramsey, 11 How. (U. S.) 185; Lowell v. Spring, 6 Mass. 398; Weatherby v. Johnson,
Under modern practice the right of appeal is deemed wholly statutory except where expressly secured by the constitution. [People v. Richmond, 16 Col. 274; Sharp v. Robertson, 5 Gratt (Va.) 518; Norman v. Curry, 27 Ark. 440; Wadsworth v. Davis, 63 N. C. 251.]
Where no legislative mode is provided for bringing up a case appealable by the Constitution, resort may be had to a wi*it of error. [52 Cal. 224; 30 Amer. Dec. 551.] In all other cases the failure of the Legislature to prescribe a mode of appeal specifically is equivalent to declaring that no right to 'an .appeal shall exist. [McGowan v. Duff, 41 Ill. App. 557; Ward v. People, 13 Ill. 635; In re Story, 120 Ill. 252 : Lockman v. Morgan County, 32 Ill. App. 414; McAllister v. Albion, 10 N. Y. 353; Wiscart v. Dauchy, 3 Dall. 326; United States v. Nourse, 6 Peters 470.]
Legislative Control of Statutory Rights.
Where not granted by the Constitution the right of appeal is purely a privilege, and not a vested right. [Mayne v. Huntington County, 123 Ind. 132; Davis v. Rupe, 114 Ind. 588; Bryson v. McCreary, 102 Ind. 1; Excelsior Electric Co. v. Chicago Waifs’ Mission, 41 Ill. App. 112; Hanna v. Grand Trunk R. R. Co., 41 Ill. App. 116; Ex parte McCardle, 7 Wall. 506; Leavenworth Coal Co. v. Barber, 47 Kan. 29; Hardaway v. Bites, 1 Smed. M. (Miss.) 657; Porter v. Grisham, 3 How. (Miss.) 75.]
The remedy by appeal, as practiced in this country, is unknown to the common law. [State v. Clipper, 142 Mo. 476.]
Appeal was a civil law proceeding in its origin, and was introduced therefrom into equity, admiralty and ecclesias
In order, therefore, that an appeal may be sustained, the right of a party to appeal must be expressly given. [Schooner Constitution v. Woodworth, 1 Scam. (Ill.) 511; Street v. Francis, 3 Ham. (Ohio) 277; Weatherby v. Johnson et al., 14 Mass. 420; 128 Mo. 514.]
Hnder article 10, Revised Statutes 1899, of practice and proceedings in criminal cases, being that part of the chapter of the statutes relating to appeals and writs of error in criminal cases, section 2696 of article 10, provides: “In all cases of final judgment rendered upon any indictment, an appeal to the Supreme Court shall be allowed the defendant, if applied for during the term at which such judgment is rendered.” This provides for an appeal upon a judgment against the defendant on an indictment. Section 2709, of article 10, Revised Statutes 1899, formerly section 4290, Revised Statutes 1889, provides when State may appeal, and is as follows: “When any indictment is quashed, or adjudged insufficient upon demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney, 'that there is a reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, may cause the defendant to be committed or recognized, to' answer a new indictment; or if the prosecuting attorney prays an appeal to the Supreme Court, the court may, in its discretion, grant an appeal.” This section, 2709, was under consideration in the case of State v. Cornelius, March 1, 1898, 143 Mo. 180. In a proceeding by information of the prosecuting attorney of the St. Louis Court of Criminal Correction against the defend
I wish to call attention to two statements in this opinion:
This statement in this opinion is a correct statement of the law, and is borne out by the decision of the Eederal Supreme Court in two cases on precisely the same point relating to the right of appeal. [Durousseau v. United States, 6 Cranch 312; Ex parte McCardle, 7 Wall. 506.]
The court is now asked to construe another section of article 10, Revised Statutes 1899, which gives the right to appeal, not to the State, but to the defendant. It is the opening section of the article in which section 4292, Revised Statutes 1889, construed by the court in 143 Mo. 180, above referred to, occurs. The court is now asked to write into this section the word “information.” Counsel for appellant, in his brief and argument, commenting upon this section, which is the same now as it was in the Revised Statutes of 1835, p. 498, says: “If at this time it had been held that an appeal, would lie only from a conviction upon an indictment, and not from a conviction in the circuit court in a case appealed from a justice of the peace, it should occasion no. surprise,for the language of the section quoted is specific. And if to 'the term indictment, -its technical significance, and only that, is given, clearly the right of appeal would exist only in cases tried upon indictment.” This is a frank statement. Our Supreme Court in the Cornelius case, in 143 Mo., above referred to, specifically says that the term “ 'indictment’ is a technical word, and when used.......in our statutes must be construed as having been used with the meaning attached to it at common law, to-wit, an accusation preferred by a grand jury of the county wherein the offense was committed. An’ information by the prosecuting attorney also has a well
This court then construing the word “indictment” in the criminal code of this State with reference to appeals has three times decided that the term must have only its technical significance, and counsel for appellant frankly states that if this significance is given the term, clearly the right of appeal would exist only in cases tried upon indictment. What more authority is there for writing the word “information” into section 2696, Revised Stautes 1899, relating to appeals in behalf of the defendant than there is for writing the word “information” into section 2709, Revised Statutes 1899, relating to appeals in behalf of the State? If the court can not legislate in one instance, why can it legislate in the other? In the case in 143 Mo. p. 180, the court says it indorses what Judge Sherwood said in State v. Carr, 142 Mo. 607.
The counsel for appellant in this case urge that section 4062, Revised Statutes 1889, now section 2482, Revised Statutes 1899, provides: “The trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials (not appeals) , upon indictment for misdemeanors,” and that as appeals are allowable from conviction on an indictment, therefore appeals should be allowed from convictions on an information.
Now in the State v. Carr, 142 Mo. 611, the court discussed this very point, which was then urged by the counsel for appellant as authorizing a right of appeal from a judgment quashing an information, and this court said this section (4062, Eevised Statutes 1889, now 2482, Revised Statutes 1899) “evidently relates to trials and their ordinary incidents, when the charge is contained in an information.
“There was no statute authority in this State for the suing out by the State of a writ of error in a criminal cause until the enactment of section 1988, Revised Statutes 1879, authorizing this to be done. That section has now become section 4292, Revised Statutes 1889 (and now 2711, Revised Statutes 1899). Though that section allows the state to sue out a writ of error, it can only be done in a case in which an appeal would lie on behalf of the State.” That is as provided in section 4290, supra (now 2079, Revised Statutes 1899). This section no doubt originated in three decisions of this court holding no writ of error could issue at the instance of the State in a criminal cause: State v. Copeland, 65 Mo. 497; State v. Cutter, 65 Mo. 503; State v. Cox, 67 Mo. 46.
To read the word “information” into section 2696, Revised Statutes 1899, authorizing an appeal only from a judgment on an indictment, will necessarily result in the court’s having to read it into section 2709, Revised Statutes 1899, authorizing an appeal by the State only when an indictment is quashed or adjudged insufficient on demurrer, or when judgment thereon is arrested. This court said in 142 Mo. 610, the word “information” can not be written into section 2709, Revised Statutes 1899, without judicial legislation. I can not see how it can be written into section 2696, Revised Statutes 1899 (the section authorizing a defendant to appeal from a final judgment on an indictment), without judicial legislation.
It is pertinent here to observe that, while the statute
This court' can not consistently, in my opinion,' legally read the word “information” into section 2696, Revised Statutes 1899, so as to give .an appeal from a judgment of conviction on an information.
If this can not be done, then the counsel for appellant seek to get this court to hold-that the word “indictment,” as used in the statute, allowing a defendant an appeal from a judgment on an indictment (section 2696, Revised Statutes 1899), is broad enough to include the word “information” in its definition. The answer to that argument is, that this court has always given the words “indictment” and “information” their technical common law meaning, and that each has a separate independent technical meaning. [State v. Clipper, 143 Mo. 180.]
The brief of counsel for appellant contends that, as the court has so long assumed jurisdiction, it has, by such assumption, actually acquired jurisdiction.
The proposition is frankly stated that at first, no right of appeal existed from a conviction on an information, but by
If one court can assume jurisdiction of a class of cases and then acquire it, of course another court can do the same thing. And if this custom is allowed to be established, soon all the courts will be exercising just such jurisdiction as each sees proper to assume. Certainly this court will not announce the proposition that jurisdiction simply depends on a court’s assuming it.
But this is just what the counsel for appellant argue, and in support of this contention cite a long list of cases in which the Supreme Court of Missouri has passed upon the merits of appeals in cases arising upon information, and in which cases the question of jurisdiction is passed sub silentio.
Now in the following three cases this court has held that the State can not appeal from a judgment quashing an information, and that the State can only sue out writs of error in cases in which an appeal lies on behalf of the State: State v. Cornelius, 143 Mo. 180; State v. Clipper, 142 Mo. 474; State v. Carr, 142 Mo. 607.
If the argument which counsel for appellant urge as a reason why an appeal should be allowed a defendant from a conviction, to-wit, because so many have been taken without question, is good; then the same argument should hold good
I cite here a number of cases I have found in the Supreme and Courts of 'Appeal reports, where an appeal has been taken from a judgment on an information, by the State. and the case passed on its merits regardless of the question of jurisdiction.
The case of State v. Ford, 70 Mo. 470, was where the defendant was arrested and subsequently tried before a justice of the peace under a statute making it a misdemeanor* to willfully disturb the peace of any person or neighborhood, and was adjudged to pay a fine, and an appeal was taken to the common pleas court where the proceeding was dismissed on the ground that the justice of the peace had no jurisdiction, and then an appeal was taken to this court where the judgment was affirmed, the court here basing its decision on the ground that the statute in question only authorized a civil proceeding, and that the action begun was a criminal one. No question of the right of the State to appeal was raised.
In State v. Kanaman, 94 Mo. 71, a complaint was made by a private citizen before a justice of the peace charging the defendant with a misdemeanor. The defendant was tried and convicted and appealed to the circuit court where the defendant filed a motion to dismiss on the ground that the complaint was filed by a private person. The prosecuting attorney offered to file an amended complaint, which the court refused, and sustained the motion to dismiss, and the
The case of State v. Kelm, 79 Mo. 515, was a prosecution for petit larceny begun in a justice court on the affidavit of a private citizen. A conviction was had and an appeal to the circuit court occurred, and the circuit court sustained a motion in arrest of judgment, and the State appealed. The Supreme Court held that a conviction could only be had for a misdemeanor before a justice of the peace upon an information, and that the term “information” must be given its technical common-law significance, and in our State an information should be deemed to be such only as in England is presented by the attorney or solicitor general. And that, as our-district and prosecuting attorneys had a good many of the' powers exercised by the attorney-general and solicitor general of England, that the prosecuting attorneys would have the-right to prosecute by information. And the court said: “The framers of the Constitution employed the term ‘information/ without more, well understanding its common law import and meaning. And wo are not authorized, nor is the Legislature to extend its meaning and use.” [State v. Kelm, 79 Mo. 517.]
If this is true how could this court change the definition of the word “information” so as to hold it to be included in the term “indictment” for purposes of appeal ?
No right of appeal from conviction on an information existed at common law, and our statute has given none. No question was raised of the right of appeal by the State in the ease cited in 79 Mo. 517.
The case of State v. Bliler, 138 Mo. 139, was on an information for book-making and pool-selling, in the criminal court of Jackson county, Mo. The information was quashed. The State appealed, and the case was passed upon by the
The case of State v. Lee, 137 Mo. 143, was an appeal by the State from a judgment sustaining a motion to quash an information in the St. Louis Criminal Court. The Supreme Court reversed and remanded the case, and the question of jurisdiction was not raised. The case of State v. Murlin, 137 Mo. 297, was,an appeal by the State from a judgment sustaining a motion to quash in a prosecution for a violation of the statute in working a coal mine in Macon county without having shot-firers employed to shoot the shots after the employees and others had left the mine. The constitutionality of the law was passed upon,-and the case reversed and remanded to be again tried. The case of State v. McCabe, 135 Mo. 450, was an appeal by the State from a judgment quashing an information in the court of criminal correction of St. Louis, Mo. The court reviewed-the record and held that the lower court erred in quashing the information, and reversed and remanded the cause. State v. Van Brunt, 147 Mo. 20, holds that an appeal will not lie from a judgment quashing an information.
The case of State v. Dinnisse, 109 Mo. 434, was an appeal by the State from a judgment quashing an information in the court of criminal correction of the city of St. Louis, Mo., and the Supreme Court reviewed the record and said the information should have been quashed, and affirmed the judgment.
In the following cases the courts of appeal have entertained cases appealed by the State from judgments on motions to quash the informations: State v. Pulitzer, 12 Mo. App. 6; State v. Mahaey, 19 Mo. App. 210; State v. McDaniel, 40
In all these cases, the Supreme Court and the courts of appeal assumed jurisdiction of the cases appealed by the State from judgments on motion and the merits of the cases were passed upon and no question of jurisdiction was raised. And yet if State v. Cornelius, 143 Mo. 180, and State v. Clipper, 142 Mo. 474, and State v. Carr, 142 Mo. 607, and State v. Van Brunt, 147 Mo. 20, are not overruled, the courts were without jurisdiction to hear the cause, because no appeal would lie. The question'of jurisdiction was passed subsilentio and jurisdiction was assumed. It was not decided in any of the cases that the court had jurisdiction. How can they be precedents then % Are courts to be so bound by custom that they can not correct mistakes ? It matters not what the profession or the courts think the law ought to be, but the question, what is the law, is the point to be decided.
A probate court might unchallenged assume jurisdiction
Suppose the circuit court in the fifteenth judicial circuit of Missouri had held for twenty years that no appeal would lie from a final judgment of conviction in said court on an indictment and that its jurisdiction was final and no appeal had been allowed. Would that give the circuit court of the Fifteenth judicial circuit final jurisdiction in such cases? Would that take away the right of appeal? If the right to appeal can be acquired by simply being assumed, why can it not be lost by a court’s simply assuming it does not exist in refusing to allow it ?
If the assumption of the right to appeal in the number of cases cited by counsel for appellant can establish the right in this court now, how many cases will it have to be assumed in to establish the right ten years from now, when the personnel of this court will perhaps be changed ? If the number of cases cited by counsel for appellant assuming the right of appeal exists establishes the right to it in convictions on informations, in how many cases will the right of appeal have to be assumed to exist in other causes of cases in which it is not now authorized by statute before the right can be acquired ? Interpretation of a statute does not mean legislation by a court. Courts do not sit to say what the law ought to be, but it is their duty to declare the law as they find it, leaving its «wisdom and policy to the Legislature. [54 Mo. App. 310.]
Different Methods of Procedure may exist in Different Localities.
Counsel for appellant recites the fact that an appeal may be allowed from a conviction on an information in the court of criminal correction of St. Louis city, and if it is not allowed from a conviction in other parts of the State, counsel
The section allowing appeals from justices of the peace in criminal cases enacts that, “the persons so charged with and convicted -by any justice of the peace of any such offense may appeal from the judgment of such justice of the peace to the circuit court: Provided, said person shall enter into a recognizance to the people of the State of Michigan, in a sum of not less than $50 nor more than $500, within ten days after rendition of the judgment, with one or more sufficient sureties, conditioned to appear,” etc.
The relator asked for a mandamus to compel the police justice to file the bond and certify the case to the circuit or recorder’s court chiefly upon two grounds: First, that all persons accused of violation of the criminal laws of the State are of right entitled to the same rights and remedies, regardless of locality of the court in which he is tried. Second, that the Constitution, having vested the several circuit courts with appellate jurisdiction over all inferior tribunals, it is not competent for the Legislature to deprive them 'of such appellate jurisdiction. But the court said.: “What the Constitution guarantees is that the accused shall have the right to a speedy and public trial by an impartial jury; to be
The Legislature, the court held, had a right to provide for an appeal to the recorder’s court in certain cases, and not in certain others; that no person has a constitutional right to a second trial after having been duly convicted before a court of competent jurisdiction, by an appeal to another tribunal; neither is there an inherent right to appeal from a judgment of an inferior to a court of superior jurisdiction, for the purpose of securing a second trial upon the merits. The right to an appeal is, and always has been statutory, and does not exist at common law. It is a remedy the Legislature may, in its discretion, grant or take away, and it may prescribe in what cases and under what circumstances and from what court appeals may be taken. [Sullivan v. Hany, 10 L. R. 265; Constitution v. Woodworth, 2 Ill. 635; Ex parte McCardle, 74 U. S. 506; Prout v. Berry, 2 Gill 142; State v. Northern Central Ry. Co., 18 Md. 193; Kundinger v. Saginaw, 59 Mich. 355; Demaray v. Little, 17 Mich. 386; Marfield v. Freeman, 39 Mich. 64; Katy v. Centerville, K. G. Mfg. Co., 48 Mich. 133; Michigan Insurance Co. v. Whittemore, 12 Mich. 311; People v. Detroit Police Justice, 7 Mich. 456; Clark v. Raymond, 26 Mich. 415.]
The contention was made in this Michigan case, that to allow appeals in one class of proceedings, or from one portion of the State from an inferior to a superior tribunal and to deny it in another class of cases, or in another portion of the State under the same circumstances and conditions, was a plain violation of the fundamental principle of equality which underlies a republican form of government and which has
In Katy v. Centerville, K. G. Mfg. Co., 48 Mich. 133, Mr. Justice Campbell, delivering the opinion of the court, said: “No appeal lies in any case except when given by statute.”
That case was a proceeding in chancery for a voluntary dismissal of a corporation. Nothing was said in the statute authorizing such a proceeding, about the right of appeal, and the court held that no appeal could be taken. The court said: “If the legislature possessed this power to grant or take away appeals as a remedy, they may deny it with reference to particular courts created by them, and permit it to others; they may deny appeals from the judgments of the police court and permit it in other portions of the State. An exercise of this power by the legislature has been frequent in both civil and criminal cases. It has made it a crime to take fish from certain streams and localities, while it has been permitted in other portions of the State. It has constantly organized
In People v. Police Justice, 1 Mich. 458, the facts were that justices of the peace had jurisdiction of certain misdemeanors in Detroit; that an act was passed establishing a police court and giving it such power as the justice of the peace theretofore had, and prohibiting a justice of the peace in said city from exercising any power possessed previously. The right of appeal had existed from a conviction before a justice of the peace. The act creating the police court did not provide for an appeal. Subsequently the act authorizing justices of the peace also to try misdemeanor cases in Detroit was re-enacted; the right of appeal was also given. A man was convicted in the police court of a misdemeanor, and an appeal was refused, on the ground that the act creating the police court did not provide for an appeal. He applied for a mandamus to compel an appeal to be granted upon the ground that as the police court act gave the police court such power as the justices of the peace theretofore had, and as the right of appeal was given from a justices’ court, that therefore, when the law was re-enacted, giving the justices concurrent jurisdiction over misdemeanors in Detroit with the police court, that the right of an appeal was granted from a judgment in the police court because the same proceedings should control in each court. The Supreme Court of Michigan held that the right of appeal from the police court did not exist and said that, “appellate jurisdiction can never be taken by implication; nor does it ever attach to crimes or offenses, but only to judgments and to such judgments and of such tribunals as the law, in express terms, extends it to.”
It was argued that the mode of procedure directed to be, and adopted in the police court, was that prescribed in the
This decision of the Michigan Supreme Court is in harmony with the decision of the Missouri Supreme Court in the Carr case, 142 Mo. 611, when it decided that the provision of the statute declaring that “The trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictment for misdemeanors,” related only to trials and their ordinary incidents.
The right of appeal does not relate to the trial. It is no part of the trial. It is a step to obtain another trial. It is no part of the procedure or proceedings in the trial of the case.
The Bowman case is an illustration of the doctrine that no appeal will lie unless expressly given. The relator, Bowman, was disbarred by the St. Louis Circuit Court, and the
The Constitution of Missouri does not expressly give the right of appeal in a prosecution upon an information. No constitutional right is therefore violated by no appeal being allowed. The provisions of the Constitution of Missouri relating to the jurisdiction of the Supreme Court are exactly the same as the Michigan Constitution. The Supreme Court of Michigan, construing this provision of the Constitution, relating to the appellate jurisdiction of the Supreme Court said: “Except in cases specifically mentioned, as in original writs, the Supreme Court’s jurisdiction was appellate, but it obtained no jurisdiction of cases by appeal except where the legislature allowed an appeal.” [10 L. R. A. 266.]
For the reasons hereinbefore given, I believe the prior decisions of the Supreme Court of Missouri correct, and that no appeal should be allowed in this class of cases.