206 Mo. 558 | Mo. | 1907
This cause is brought to this court upon appeal by the defendant from a judgment of the circuit court of Grundy county convicting him of a misdemeanor, that of disturbing the peace of a person. The defendant in the trial court filed a plea in bar, which consisted of a recitation of a record, which defendant insists shows that he had formerly been put in jeopardy for the same alleged offense upon which this judgment is predicated, and he invokes the constitutional provision that “mo citizen shall be twice put in jeopardy for the same offense, and that no person shall be deprived of liberty or property without due process of law,” and it is under that state of the record by which this court has jurisdiction. This constitutional question having been expressly raised and invoked in the trial court, and the action of the trial court upon the plea in bar being the main question involved in this proceeding, it is appropriate to briefly state the facts relating to the basis of such plea.
In April, 1904, William Wingate, the father of Lena Wingate, filed an affidavit before a justice of the peace charging in said affidavit that defendant Webster did disturb the peace of his daughter, Lena Win-gate, referring to the occasion of defendant’s dispute with Terry. On this affidavit the prosecuting attorney filed his information charging that the defendant Webster, at said time, did disturb the peace of said Lena
“Now comes the defendant, 'William Webster, in his own proper person having seen and heard the information filed against him, in this canse, by the prosecuting attorney, on the affidavit of Lena Wingate, on October 3, 1904, said information having been originally filed in the office of the clerk of the circuit court of Grundy county in term time, and, for his plea and answer to said information, states the following facts:
“On April 20i, 1904, there was filed before W. B. Linney, a justice of the peace, the following:
“ 'AFFIDAVIT.
“ ‘Before W. B. Linney, Justice of the Peace in and for Trenton Township, Grundy county, Missouri.
“ ‘State of Missouri, County of Grundy, ss.
“ ‘W. M. Wingate, being duly sworn, upon his-oath states that on or about the — day of April, 1904, one William Webster, late of said county, did at Grundy county, Missouri, willfully and unlawfully disturb the peace of Lena E. Wingate and divers other persons then and there being, by loud and unusual noise, by loud and indecent language and conversation, by threatening, quarreling, challenging and fighting, against the peace and dignity of the State.
•his
“ ‘W. M. (x) Wingate.
mark
“ ‘Subscribed and sworn to before me this 20th day of April, A. D. 1904.
“ ‘W. B. Linnet,
“ ‘Justice of the Peace.’
“Afterwards and on June 7,1904, the prosecuting attorney of Grundy county filed with said justice of the peace the following:
1 ‘1 State of Missouri, County of Grundy, ss.
“ ‘Before W.- B. Linney, a Justice of the Peace within and for Trenton Township, Grundy County, Missouri.
“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.
■ “ ‘Comes now C. J. Bain, prosecuting.attorney for Grundy county, Missouri, and upon the affidavit of William Wingate heretofore filed with the justice herein, informs the justice and his court that on the — day of — A. D. 1904, at Grundy county, Missouri, one William Webster did then and there unlawfully disturb the peace of Lena W. Wingate and Chas. Terry by loud and unusual noise, by indecent conversation, by threatening, quarreling and challenging, against the peace and dignity of the State.
“ ‘ Claud J. Bain,
“ ‘Prosecuting Attorney for
Grundy County, Missouri.’
“On June 8,1904, the defendant was duly arraigned and tried before said justice of the peace and fined one dollar.
“Afterwards, and on the same day, the defendant duly filed his affidavit and recognizance in appeal, and said justice granted defendant an appeal to the Grundy Circuit Court and said cause was duly transferred by appeal to said court and on June 14, A. D. 1904, said: justice of the peace duly filed his transcript in the office of the clerk of the circuit court of Grundy county.
“On Monday, October 3,1904, the prosecution and cause which had so originated before said justice of the peace, and, which had been appealed, was duly pending in the Grundy Circuit Court; and, the Grundy Circuit Court had jurisdiction of said cause; and, said cause was duly docketed and set for trial on Monday, October 3, A. D. 1904.
“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.
“ ‘Seventh Day, Monday, October 3, 1904.
“ ‘Defendant filed motion to quash, which was taken up, by the court considered, and by the court overruled. ’
“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.
“ ‘Defendant appears in open court and waives 'formal arraignment and pleads not guilty. ’
“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.
“ ‘Parties answering ready for trial there came the following jury, to-wit: J. M. Dunlap', C. E. Boyce, 'James Collier, Ben Ballenger, L. D. Cornwell, Theo. Bratton, J. H. Cooper, Robert Gibson, B. C. Nichols, R. E. Boyce, R. I. Sandlin, H. P. Barrows.
“ ‘The State having introduced testimony in this cause defendant offered demurrer to the testimony, and it appearing to the court that prosecuting witness, Wm. Wingate, upon whose affidavit the information was based, was not present at the time of the alleged offense and had no actual or personal knowledge of the offense, the demurrer is sustained and the information
“This was all the proceedings with respect to the information first filed before W. B. Linney, justice of the peace, on appeal, at the October term, A. D. 1904, of the Grundy Circuit Court, which said proceedings are shown by circuit court record1 of Grundy county, book 13, at page 336, 337, except an order taxing costs against the prosecuting witness, "William Wingate. Afterwards, and on the same day, a new information, being the present one, was filed in said court and continued.
“The jury that was so impaneled on October 3, 1904, and to which reference is made in the foregoing excerpt of the record, was discharged without rendering a verdict, without the consent and against the objection of the defendant. Said1 jury was discharged and allowed to separate without disagreeing or being found wanting with respect to their duty to be performed, or failure in any manner on their part, and without any cause, but solely by mere error and irregularity. The failure of said jury to render a verdict in said cause arose solely from the reason that they were not permitted to render a verdict therein and were not allowed or instructed to pass upon the guilt or innocence of the defendant, wdth respect to the charge contained in said information.
“That William Webster, mentioned in the aforesaid information, filed on June 7, A. D. 1904, is the same William Webster, being the defendant, who is mentioned in the information filed on October 3, 1904.
“Both of the aforesaid informations allege and refer to the same transaction and facts, at the same time and place.
“As to' any offense alleged in the present information, filed on October 3, A. D. 1904, the defendant says he is not guilty thereof.
“Wherefore, the defendant prays judgment and that by the court he may be dismissed and finally discharged from the present information.
“William Webster, Defendant.
“Htjbbell Bros., Attorneys for Defendant.
“State of Missouri, County of Grundy, ss.
“William Webster being duly sworn on his oath states that the facts stated in the above and foregoing plea of former jeopardy are true in substance and in fact.
“William- Webster.
“Subscribed and sworn to before me this 28th day of January, A. D. 1905'.
“R. F. Schooler.”
On February 2, 1905, defendant’s plea of former jeopardy came on for hearing; defendant introduced in evidence the documents, papers and records to which reference is made in said plea of former jeopardy and other evidence, which substantially established the truth of the allegations as set forth in said plea of former jeopardy. The court overruled defendant’s said plea of former jeopardy, holding it to be insufficient in law, to which aetion of the court defendant then and
The principal complaint of error ora the part of the defendant is directed to the action of the court upon the plea in bar as heretofore indicated; therefore, it is not essential that the evidence upon the trial upon the new information be set out in detail. It is sufficient to say that there was evidence offered ora both sides and the cause was submitted to the jury and they returned a verdict finding the defendant guilty and assessed his punishment at a fine of five dollars. Timely motions for new tidal and in arrest of judgment were filed and by the court overruled. Judgment was rendered in conformity to the verdict for the recovery of the fine and from this judgment defendant prosecuted this appeal and the record is now before us for consideration.
OPINION.
The record in this cause fully discloses the plea of the defendant as to his former jeopardy and we have embraced such plea in the statement made of this cause. There is no controversy as to the truth of the allegations set up in defendant’s plea: their truth is conceded, and the trial court simply ruled that they were insufficient in law to constitute a bar to his further prosecution.
The first information filed before the justice of the peace, which was finally pending before the circuit
It is suggested by tbe learned- Attorney-General that tbe information filed before tbe justice of tbe peace was not verified in conformity to tbe provisions of section 2477, Revised Statutes 1899, therefore was insufficient, and the circuit court of Grundy county acquired no jurisdiction of tbe cause by appeal. Tbis is clearly a misapprehension of tbe section of tbe statute wbicb is applicable to- informations filed with a justice of tbe peace. Section 2477 is applicable alone to informations filed in tbe circuit or criminal courts. Section 2750, Revised Statutes 1899, provides for tbe procedure before tbe justice, and the information upon wbicb tbe plea in tbis cause was based, is based upon tbe provisions of that section. Under tbe provisions of section 2750' it is not essential that tbe information should be verified, and tbis has been expressly ruled by tbe Court of Appeals of tbis State. [State v. O’Connor, 58 Mo. App. 457; State v. O’Kelley, 121 Mo. App. 178, and cases cited'.]
We bave carefully considered tbe plea of former jeopardy as disclosed by tbe record, and we see no escape from tbe conclusion that it constitutes an absolute bar to any further prosecution in this cause. Tbe
We repeat that the information upon which this plea is predicated was valid upon its face. After an unsuccessful motion to quash it both parties announced ready for trial; the jury was impaneled and sworn to try the cause; the State introduced evidence and the defendant filed a demurrer to the evidence, which was sustained and the information quashed, and the court dismissed the jury in the case and ordered that the dei
From its earliest history and ever since the organization of this State, the organic law has thrown around the citizen protection from being put in jeopardy more than once for the same offense. Commencing with the Constitution of 1820, article 13, section 10, it was there declared that “no person, after having been once acquitted by a jury, shall, for the same offense, be again put in jeopardy of life or limb.” Of similar import is section 19 of article 1 of the Constitution of 1865; and the views of those who framed our constitutional provisions, as well as the entire people of this State, are finally crystalized in the provisions of section 23, article 2, of our present Bill of Rights, as hereinbefore quoted.
As to the correctness of the action of the circuit court in sustaining the demurrer to the evidence offered by the State, for the reasons disclosed by the record, we express no opinion. Whether the action of the court was proper or erroneous, the court acted, and the jury was sworn and the trial began; this was sufficient as a basis for the plea interposed by the defendant.
We see no necessity for pursuing this subject fur-