State v. Hamey

57 L.R.A. 846, 67 S.W. 620, 168 Mo. 167, 1902 Mo. LEXIS 173

• Court: Supreme Court of Missouri
• Decided: March 29, 1902
• Status: Published

Opinions

GANTT, J.

— The defendant was indicted in the criminal court of Buchanan county for a violation of section 1838, Be-vised Statutes 1899, which was enacted April 8, 1895. [Laws 1895, p. 149.]

That act provides that “if any person over the age of sixteen years shall have carnal knowledge of any unmamed female, of previously chaste character, between the ages of fourteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month or more than six-months, or by both such fine and imprisonment, in the discretion of the court

The defendant was duly arraigned and entered his plea of not guilty.

At the November term, 1901, of said court, he was tried by a jury duly impaneled, which returned the following verdiet: “We the jury find the defendant guilty and assess his punishment at imprisonment in the county jail for a term of one month and a fine of five hundred dollars.”

And his motions for new trial and in arrest having been overruled, the court sentenced the defendant to imprisonment in the county jail for one month and to pay a fine of five hundred dollars.

Erom that sentence he appeals.

On a hearing of said appeal in Division Two the judgment of the criminal court was reversed, but one of the judges dissenting, the cause on motion of the Attorney-General was ordered transferred to the Court in Banc, and it has been again argued at length.

I. When the cause was reversed in Division Two of this court it was accompanied with an order of discharge. After the order was made transferring the cause to the Court in Banc, the defendant filed his motion to strike the same from the files, because, as he alleged, the Constitution did not confer upon the Attorney-General the right to have said cause transferred after a judgment by Division Two in favor of defendant’s discharge.

The argument is that as the State is not entitled to an appeal or to a review of a judgment rendered in the trial court except in those instances expressly allowed by statute, it follows that it can have no right to have the judgment of. an appellate court reviewed unless that right be expressly given.

This contention ignores the amendment to the Constitution of this State which was adopted at the general election in November, 1890. Section one of that amendment confers exclusive cognizance of all criminal cases pending in the Supreme Court upon Division Two thereof, provided, that a cause therein may be transferred to the Court in Banc as provided in section 4 of said amendment. [Constitution, art. 6, amendment 1890.] Section 4 provides that “when a judge of a division dissents from the opinion therein,” “the cause, on the application of the losing party, shall be transferred to the Court in Banc for its decision.” Here, then, is the express authority in the organic law for removing the cause into the Court in Banc.

It is not, however, an appeal. The provision was designed to give a losing party in either division of the court a hearing, under the conditions specified, by the whole Court in Banc. It has been uniformly ruled that the State was entitled to the same benefit of this provision as any other party. [State v. Marcks, 140 Mo. 656.]

We are unanimously of opinion, that the order of transfer made by Division Two in this cause conferred jurisdiction of this appeal on the Court in Banc, and that the judgment of discharge by Division Two was thereby vacated, or at least suspended to abide the judgment of the Court in Banc, and accordingly the motion to strike the cause from the docket is overruled.

II. Recurring now to the questions arising on this record.

The first proposition advanced by defendant is that section 1838, Revised Statutes 1899, is unconstitutional in that it violates sections 22, 28, and 30 of article 2, of the Constitution of Missouri of 1815. Those sections are in these words:

“Section 22. In criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy, public trial by an impartial jury of the county.

“Section 28. The right of trial by jury, as heretofore enjoyed shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law. Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill.

“Section 30. That no person shall be deprived of life, liberty or property without due process of law.”

The first premise assumed by the learned counsel is that “the right of trial by jury at common law meant than one part of the jury’s duty was to return into court a verdict, if > they found defendant guilty, assessing his punishment as provided by law, or a general verdict of guilty and thereupon the court fixed his punishment.” [Citing Blackstone’s Com., book 4, p. 361.]

The text of Blaokstone cited does not sustain counsel. On the contrary, that learned author says: “When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury can not be discharged (unless in cases of evident necessity) till they have given in their verdict, but are to consider of it, and deliver it in, with the same forms as upon civil causes; only they can not, in a criminal case which touches life or member, give a privy verdict. But the judges may _ adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court. And such public or open verdict may be either general, guilty, or not guilty, or special, setting forth all the circumstances of the case and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have the unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper so to hazard a breach of their oaths. And if their verdict'be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner. But the practice heretofore in use of fining, imprisoning or otherwise punishing jurors, merely at the discretion of the court, for finding their verdicts contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago; who accounted ‘such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England.’ ”

It will be observed there is nothing in this statement that justifies the assertion that at common law the jury had the right to assess the punishment of the prisoner if they convicted him; on the contrary, their verdict was guilty or not guilty, and the court fixed the punishment according to the laws in force, and such has been the common understanding of our law-writers and courts. [1 Bish. New Crim. Law, sec. 934; State v. Bangor, 41 Maine 533; United States v. Mundel, 6 Call 245; People ex rel. Bradley v. Ill. State Reformatory, 148 Ill. loc. cit. 422; People v. George, 167 Ill. 447; Miller v. State, 40 L. R. A. 109, 149 Ind. 607; State v. Skelton, 149 Ind. 641.]

But, say counsel, whatever the practice may have been or was at common law, when introduced into this State, it was soon modified by requiring the jury, if they found a defend-' ant guilty, to assess his punishment within the limits prescribed by law and that such continued to be the statutory law until the adoption of the Constitution of 1875, when it was provided that “the right of trial by jury as heretofore enjoyed shall remain inviolate” and, hence, the statute (section 1838, Revised Statutes 1899) is unconstitutional because the jury under said section is not allowed to assess the punishment but that duty is imposed on the court.

This section (1838) must of course be read in conjunction with those general provisions of our statute law which govern in the trial, of all prosecutions of felony. Since 1835, at least, the statutes of this State have provided that the courts in certain cases shall assess the punishment.

Thus sections 4, 5, 6 and 7 of article 7 of chapter 138, Eevised Statutes 1845, specify instances in which the court shall assess the punishment. Section 4 of that act provides that “where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, or in excess of that fixed by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render a judgment accordingly.” Section 5 provides that “if the jury assess a punishment, whether of imprisonment or fine, below the- limit prescribed by law for the offense of which the defendant is -convicted, the court shall pronounce sentence and render judgment according to the lowest limit prescribed by law.” Section 6 provides that if the jury assess a punishment, whether of imprisonment or fine, greater than the limit prescribed by law for the offense, the court shall disregard the excess, and pronounce sentence and render judgment according to the limit prescribed by law in such cases. Section 7 also authorizes the court “to reduce the extent or duration of the punishment assessed by a jury” if, after it has found the conviction is proper, the punishment assessed is greater than under the circumstances of the case should be inflicted. [R. S. 1845, pp. 883, 884.]

The same sections are carried forward into the statutes of 1855. [2 R. S. 1855, pp. 1196 and 1197, sections 5, 6, 7 and 8.]

The same provisions are found in the General Statutes of 1865, p. 852, sections 5, 6, 7 and 8.

The same provisions are found in the revision of 1879. [R. S. 1879, p. 323, secs. 1930, 1931, 1932 and 1933.]

And also in 1889. [R. S. 1889, p. 981, secs. 4230, 4231, 4232 and 4233.]

And also in the Eevised Statutes of 1899. [R. S. 1899, p. 692, secs. 2649, 2650, 2651 and 2652.]

The same provisions are found in the Eevised Statutes of 1835. [R. S. 1835, p. 493, secs. 4, 5, 6 and 7.]

These references clearly show that the laws of Missouri have always recognized that it is constitutional to authorize either court or jury to assess the punishment, in a felony case.

It is to be observed that counsel do not assert that prior to the adoption of the Constitution of 1875 it was a constitutional right, of defendant, to have the jury assess his punishment in that class of felonies in which the punishment ranged from a minimum to a maximum punishment and vesting a discretion in the jury to fix it within those limits. Certainly there was, both under the Constitution of 1820- and that of 1865, a constitutional right of trial by jury, but that phrase was too well understood to admit of such a construction as counsel now place upon the present provision in section 28 of article 2 of the Constitution of 1875.

Says Mr. Justice Story in his work on the Constitution (vol. 2, sec. 1779): “It seems hardly necessary in this place to expatiate upon the antiquity or importance of the trial by jury in criminal cases. It was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. . . . The right constitutes one of the fundamental articles of Magna Oharta, in which it is declared, ‘No man shall be arrested, nor imprisoned, nor banished, nor deprived of life, etc., but by the judgment of his peers or by the law of the land.’ The judgment of his peers here alluded to, and commonly called, in the quaint language of former times, a trial per pais, or trial by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the State. "When our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance, as a part of that .admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power. It is now incorporated into all our State Constitutions as a fundamental right, and the Constitution of the United States would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.”

It will be remembered that this eulogy of Judge Story ■of trial by jury referred to the trial by jury at common law, which did not include the right of the jury to assess the punishment. It will be further observed that neither Mr. Justice 'Story nor the framers of the Constitution of the United States, or of our own Constitution, thought it necessary to define what the words “trial by jury” meant. He and they assumed that these words ex vi termini meant a trial by twelve men, impartially selected- from the county in which the alleged crime was committed, who must unanimously concur in the guilt of the accused before he could be legally convicted. A law dispensing with any of these essential requisites, we all concede, would be a denial of the right of trial by jury and necessarily unconstitutional. [Ex parte Slater, 72 Mo. 102.]

Says Judge Cooley in his Constitutional Limitations (6 Ed.), 389, 390: “Whenever the right of trial by jury is guaranteed by the Constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at common law, and with all the -common-law incidents to a jury trial, so far, at least, as can be regarded as tending to the protection of the accused.”

In State ex rel. v. Withrow, 133 Mo. 500, this court, through Sherwood, J., said: “And section 28 of our Bill •of Eights declares that ‘the right of trial by jury as heretofore ■enjoyed shall remain inviolate,’ which means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, .and are preserved in their ancient substantial extent as existing at common law.” This language is significant because Barclay, J., contended that we had adopted the Missouri trial by jury in 1820 and not the English.

Now it is conceded our laws secure to the defendant in a prosecution under this section (1838) a trial by jury with every common-law incident and protection. These briefly were: 1

First. The jury must be twelve men indifferent between the prisoner and the commonwealth; to secure this challenges must be allowed.

Second. The jury must be summoned from the vicinage where the crime is supposed to have been committed. This gives the accused on the trial the benefit of his own good character and standing with his neighbors.

Third. The jury must unanimously concur in the verdict.

Fourth. The jurors must be left free to act in accord-^ anee with the dictates of their own judgment.

As the right and duty devolved upon the court at common law to assess the punishment, it is plain this statute does not violate the common-law jury trial in leaving the punishment to the court. All of these have been accorded to the defendant in this case.

. The Constitution of 1820 provided “ that the right of trial by jury shall remain,inviolate,” and the Constitution of 1865 retained the same formula. According to Judge Cooley these words in both of these Constitutions must mean that the right was retained in all those cases which were triable by a jury at common law and with all the substantia] common-law incidents of a jury trial, among which it can not be maintained was the right to have the jury in a felony case assess the punishment when it was in the alternative or subject to a scale.

"We are thus brought to consider the true signification of the words “the right 'of trial by jury as heretofore enjoyed shall remain inviolate,” in the Constitution of 1875.

The defendant insists that because for many years prior , to 1875 the duty of assessing the punishment had been imposed by our statutes upon the jury when they convicted a defendant, except in those cases in which the law fixed but one punishment, that was one of the rights secured by the Constitution, and such was the view taken in Division Two in this case, and, hence, can never be changed by statute until the Constitution is changed.

It will certainly not be contended that prior to the Constitution of 1875 the Legislature could not have repealed the general provision which has been in, all our revisions from 1845 to the present time which requires that “in all cases of a verdict of conviction for any offense where by law there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted, the jury may assess and declare the punishment in their verdict.”.

There was nothing in the Constitution of 1820 or 1865 which tied the hands of one Legislature so that it could not repeal or modify the acts of its predecessors. It is fundamental in a system of government like ours that one Legislature can not pass an irrepealable law. Says Judge Cooley, “The Constitution, in conferring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose; and no other power than the people can superadd other limitations. To say that the Legislature may pass irrepealable laws, is to say that it may alter the very Constitution from which it derives its authority; since, in so far as one Legislature could bind a subsequent one by its enactments, it could in the• same degree reduce the législative power of its succes 'ors; and the process might be repeated, until, one by one, the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be, to a greater or less degree rendered ineffectual.” ' [Cooley, Constitutional Lim., p. 147.]

“Acts of Parliament,” says Blackstone, “derogatory from the power of subsequent Parliaments, bind not.” [Bloomer v. Stolly, 5 McLean 158; Kellogg v. Oshkosh, 14 Wis. 623.]

And again, Cooley in his Constitutional Limitations, at page 343, says, “We have said in another place that citizens have no vested rights in. the existing general laws of the State which can preclude their amendment or repeal, and there is no implied promise on the part of the State to protect the citizens against incidental injury occasioned by changes in the law.”

As the act of the Legislature prior to 1875 permitting a jury to assess the punishment in eases when there was a discretion as to kind or length of punishment was a legislative and not a constitutional enactment, any subsequent Legislature could repeal or amend the same unless the contention of defendant is correct that by the addition of the phrase “as heretofore epjoyed” the people have imposed a constitutional prohibition upon any change in our criminal practice so long as the present Constitution shall survive.

What force and effect is to be attributed to this change in the Constitution in 1875 ? Fortunately the question is not altogether a new one:

In 1870 the people of Illinois adopted a new Constitution in which they provided that the right of trial by jury as heretofore enjoyed shall remain inviolate. In 1897 the Supreme Court of that State was called upon to construe the effect of adding the words “as heretofore enjoyed” to the Constitutions of 1818 and 1848 which provided that the right of trial by jury shall remain inviolate as did our Constitution of 1820 and 1865. The construction was invoked in George v. People, 167 Ill. 447, in which the constitutionality of the act of the General Assembly of that State passed June 26, 1895, entitled “An Act in relation to the sentence of persons convicted of crime, and providing a system of parole.” Section one of said act required the court to impose the sentence, whereas previous to and at the time of the adoption of the Constitution of 1870, there was a general provision in the criminal code of that State which provided that in all cases where the punishment shall be confinement in the penitentiary if the case is tried by a jury the jury shall say in their verdict, for what time the offender shall be confined. [R. S. 1845, p. 182, sec. 168; 1 Starr & Curtis Annotated Ill. Stats., p. 1409, sec. 629.] The prisoner in that ease (as has defendant in this) had been tried by a jury of twelve chosen from the county in which the offense was committed and they had unanimously pronounced him guilty, but under the Act of 1895 had not fixed.or assessed his punishment. The court sentenced him according to the act and on appeal the identical question here raised was presented to the Supreme Court. There, as here, it was earnestly contended that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” secured to defendant the right to have the jury assess his punishment; but that court held that the right of trial by jury was the same under the Constitution of 1870 as it was under those of 1818 and 1848. Touching the argument now made the court said: “It is, however, said, that the words 'as heretofore enjoyed’ relate to those enjoyed at the time of the adoption of the Constitution of 1870. The definition given by Webster of the word 'heretofore’ is: 'in times before the present; formerly.’ The word 'heretofore,’ as used, evidently relates to the past, and in order to determine the true meaning of the words 'the right of trial by jury as heretofore enjoyed,’ it is necessary to go back to the common law of England. When this is done it will be found that the right of trial by jury constitutes certain specified things, which can not be dispensed with or disregarded on the trial of a person charged with a felony. A jury of twelve men must be impaneled, and any less number would not be a common-law jury. The jury must be indifferent between the prisoner and the people. They must be summoned from the vicinage or body of the county in which the crime was alleged to have been committed. The jury must unanimously concur in the verdict (this latter is one of the old requirements of the common law). The final decision upon the facts is to rest with the jury, and the court can not interfere to coerce them to agree upon a verdict against their convictions [Cooley’s Const. Lim., 394]. These are some of the rights guaranteed by the Constitution., But under the common law a prisoner on trial for a felony has no constitutional right to have his term of punishment fixed by a jury. At common law the jury returned a verdict of guilty or not guilty, and the punishment was fixed by the court and governed by the laws in force [2 Blackstone, book 4, 361]. It is therefore plain that the rights of the defendant, which are guaranteed by the Constitution, were not infringed upon or taken from him. In Kelley v. People, 115 Ill. 583, a conviction for a second offense was sustained, where the law itself fixed the time the prisoner should be punished by confinement in the penitentiary. If the language, ‘the right of trial by jury as heretofore enjoyed shall remain inviolate,’ shall be construed to mean that the system of trial by jury as it existed by statute at the'time the Constitution of 1870 was adopted was engrafted on and became a part of the Constitution, as is contended, many embarrassing results never contemplated would follow. When the Constitution of 1870 was adopted the statute provided that juries in all cases shall be judges of the law and fact. Did that provision of the statute become a part of the Constitution, so that it is beyond the power of the Legislature to change it? At the time the Constitution of 1870 was adopted the statute-required the court, in the trial of both criminal and civil cases, to instruct the jury in writing, oral instructions being prohibited. If the Legislature should now pass an act providing that all instructions should be oral, would such an act be unconstitutional ? Suppose the Legislature should pass an act adopting a new system of impaneling a jury entirely different from the one in force when the Constitution of 1870 was adopted, would such an act be unconstitutional ? Indeed, since the adoption of the Constitution of 1870 numerous changes have been -made in the criminal lav relating to jury trials. Are these changes all void under the language of the Constitution ‘as heretofore enjoyed?’ Other examples might be given, but they are not required. It is manifest that the language of the Constitution was never intended to confer upon the jury a constitutional right to fix the term of imprison■ment on the trial of a person indicted for a felony.”

Prior to that case the constitutionality of the reformatory act of 1891 was challenged in People v. State Reformatory, 148 Ill. 413. Chief Justice Baker wrote the opinion of the court and on this point, said: “Nor is it true that a prisoner on trial for burglary and larceny, or for any other violation of the criminal law, has a constitutional right to' have the quantity of his punishment fixed by a jury. At common law the jury either returned á special verdict, setting forth all the circumstances of the case and praying the judgment of the court thereon, or a general verdict of guilty or not guilty. The punishment was fixed by the court, and governed by the laws in force. [2 Blackstone’s Com., book 4, p. 361.] And in this State at the present time, the penalties -for violations of the criminal code are in many cases not fixed by the jury, but by the court. [Rev. Stats., p. 413, secs. 446, 447, etc.] The constitutional right of trial by jury is limited to the trial of the question of guilt or innocence, and we think there can be no question of the validity of the section of the statute to which we have made reference in this connection.”

That opinion was written in 1894, twenty-four years after the adoption of the Constitution of Illinois of 1870.

In Miller v. The State, 149 Ind. 607 (40 L. R. A. 109), the reformatory act of Indiana was challenged as unconstitutional. Said the court: “But because the jury are not allowed to fix the amount of the punishment which is to be inflicted, it is contended that the reformatory act deprives the accused of a jury trial, in violation of section 13 of the Bill of Rights. This very objection to a similar act, under a similar constitutional provision in the Constitution of Illinois, in People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 422, was held not good. It was there said: ‘Nor is it true that a prisoner on trial for burglary and larceny has a constitutional right to Lave the quantity of punishment fixed by a jury [and repeating the extract already copied from the 148 Ill. supra]. The Supreme Court of Illinois again decided the same way in George v. People, 167 Ill. 447. We therefore conclude that file act does not deprive the defendant of a jury trial, in violation of the Constitution.”

It is significant that section 19 of the Bill of Rights of the Constitution of Indiana provided that, “in all criminal cases whatever, the jury shall have the right to determine the law and the facts,” and when the same point was urged in State v. Skelton, 149 Ind. 641, the court again ruled in the same way and added additional reasons against it as follows: “We are unable to see that any of these beneficent provisions of the bill of rights is violated by not requiring the jury to fix the punishment. Our statute, it is true, as we have seen, has heretofore provided that the jury shall in' their verdict name the punishment to be inflicted. But the Constitution makes no such requirement; and that which the statute has done the statute may undo, provided it remain within the bounds fixed by the Constitution. The last act of the Legislature controls in case of conflict. Indeed, aside from any statutory requirement, the fixing of punishment can not be considered as any necessary part of the trial of a cause. When the verdict or finding has determined the existence of the crime charged, the trial is ended, and the punishment to be thereafter inflicted is the sentence which the court pronounces under the law then in force. The fixing of such punishment seems to be a proper function of a court, rather than of a jury, a matter of judgment, rather than of finding or verdict. Certainly, the leaving of this duty to the court instead of to the jury, as the act in question does, is no invasion of the sacred right of trial by jury. Article 6 of the amendments to the Constitution of the United States recures the same right to jury trial in all criminal prosecu(ions; but it has never been held that the practice in the Federal courts, according to which the court and not the jury fixes the punishment, is an infringement of the right of trial by jury guaranteed by the Constitution. Neither is the provision in question a violation of the Constitution, which provides that: ‘In all criminal cases whatever, the jury shall have the right to determine the law and the facts.’ [Const., art. 1, sec. 19.] The law, when applied to the facts found, determines the guilt or innocence of the accused, and, in case of guilt, determines the crime committed. Of all this the jury has supreme control, under the Constitution. But the sentence is the judgment of the court as to what, within the statutory limits, ought to be the proper punishment for the crime of which the defendant has been convicted. We do not think, therefore, that the verdict provided for in the new statute is any violation of the Constitution. The right of trial by jury, the right to have the innocence or guilt of the person charged with the crime determined solely by a jury of his peers, is as fully guarded under the present as under the former statute.”

The exact formula, “the right of trial by jury as heretofore enjoyed” used in the Constitution of Illinois of 1810 and in the Constitution of Missouri of 1815, we have not found in any other State Constitution. That of Pennsylvania, adopted in 1814, more nearly approaches it. There the language is, “trial by jury shall he as heretofore, and the right thereof shall remain inviolate.” [Art. 1, sec. 6.] That of New York, is “The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate.” [Art. 1, sec. 2.]

There is, however, practically no difference in their meaning. In Byers v. Com., 42 Pa. St. 89, Strong, J., said: “It is insisted that this act is repugnant to that clause of the Constitution which guarantees ‘that trial by jury shall be as heretofore, and the right thereof remain inviolate.’ The objection is based upon a misconception of what that right of trial by jury was which is protected by the Constitution. The founders of this State brought with them to their new abode the usages to which they had been accustomed in the laud from which they emigrated. Among them was trial by jury. Its extent and its privileges were perfectly understood, and in bringing it with them the founders of the commonwealth doubtless intended to bring it as they had enjoyed it. None of the framers of government or Constitutions under which we have lived have contemplated any extension of the right beyond the limits within which it had been enjoyed previous to the settlement of the State or the adoption of the Constitution. No intention to enlarge it appears in the laws agreed upon in England in 1682. Our first Constitution, that of 1776, declared that ‘trials by jury shall be as heretofore.’ The Constitution of 1790, and the amended one of 1838, adopted substantially the same provision. All looked to preservation, not extension. It is the old right, whatever it was, the one previously enjoyed, that must remain inviolable alike" in its mode of enjoyment and in its extent.”

After discussing various cases such as suits in equity and various acts to punish petty offenses, in which the right of trial by jury never existed jn England, the judge proceeds; “These acts were in forcé in 1776. In view of them, the first Constitution was made, and it declared, not that trial by jury shall be in all cases, hut as theretofore. And when that gave place to the later Constitutions they undertoolc to preserve only that right which had been enjoyed.”

In that case the attention of the court was directed to the character of cases in which the right could be demanded, not the incidents of the right itself.

In Swart v. Kimball, 43 Mich. 448, it- was the essential incident of a_ right of trial by jury of the vicinage or county which' the statute denied and of course it was unconstitutional.

In Wynehamer v. The People, 13 N. Y. 426, it was ruled, that felonies were triable by a jury and new felonies denounced and defined after the adoption of the Constitution, must be so tried “because they belong to the class of cases, in which, at the adoption of the Constitution, such a trial was used.”

But no case which our examination has enabled us to find has announced the doctrine that the fixing or assessment of the punishment in a criminal case by the jury was an essential element of a jury trial, but the common law was clearly otherwise as the authorities already cited, we think, conclusively establish. In every case to which we have had access, when the prisoner has been adjudged to have been denied an essential incident of jury trial, it appeared either that there was a denial of his right to trial by jury of the county or vicinage, or that he was denied a jury of twelve, or the jurors were not impartial or was denied by statute a jury in cases which were so triable at common law.

We reject the argument that the- common-law method never obtained in this State as to jury trials. The common-law was adopted in 1816 in Missouri. [1 Terr. Laws, p. 436, ch. 154.]

In Vaughn v. Scade, 30 Mo. 604, Judge Scott says: “The term Trial by jury’ was well known and understood at the common-law, and in that sense it was adopted in our Bill of Bights. Of course the non-essentials of that institution, such as concern the qualifications of jurors, the mode of summoning them, and many other such matters, were left to the regulation of law. The Constitution is preserved in retaining the substance of that form of trial, as it was known and practiced among those from whom we home derived it. This subject has undergone examination in other tribunals, and we find them concurring in these -views. They unite in declaring that where there is a constitutional guaranty of the right to a trial by jury, twelve is the number of which the jury must be composed.”

When, therefore, the text-writers and courts speak of the beneficial incidents of jury trial they must be understood as referring to those essentials which have already been mentioned, to-wit, twelve impartial jurors, indifferent between tbe State and the prisoner; they must be summoned from the vicinage or county in which the crime is charged to have been committed; they must unanimously agree on their verdict and must be left free to act in accordance with their oaths and • judgment. These were the essentials which the Constitution was designed to preserve, not to extend — and it was the right ' to a trial by a jury thus organized and with these incidents, which the framers of the Constitution and the people intended should remain inviolate.

When we consider that the guaranty of a jury trial in the Constitution of the United States has never been construed as. permitting a jury to assess the punishment, but that the invariable practice has been to require the judge to fix the punishment within the limits of the law, and a large number of our sister States whose Constitutions contain this same guaranty also devolve that duty upon the judges, it is absolutely certain that it was no essential part of a jury trial at common law that' the jury should also fix the punishment if they convicted the-prisoner. The testimony is too overwhelming to the contrary.

If it was not an essential, then as Judge Scott says in Vaughan v. Scade, it was left to the Legislature to determine-whether it would require the jury or the judge to assess the punishment where alternative or discretionary punishments are-prescribed by law. The jealousy of the English people and our forefathers and our own against committing the trial of disputed facts and the determination of the guilt or innocence of an accused, to the court did not extend to the assessment of the punishment which is prescribed within fixed limits, and would govern either judge or jury in assessing it.

The well-merited eulogies upon jury trial are not based upon this right of a jury to fix the amount of punishment, but upon that far greater prerogative of weighing the evidence and passing upon the guilt or innocence of the defendant.

Lord Camden, Erskine, Maynard and Blackstone who so eloquently commended “trial by jury” as the great birthright of the Englishman, as “his fence and protection against all frauds and surprises and against all storms of power,” knew nothing of the system in this State and some of our sister States requiring the jury to assess the punishment. Their commendation was of the enlightened common-law system of jury trial which had been perfected after years of experience and after English juries had finally triumphed over despotic power and servile judges. It never could have, in our opinion, been intended to tie up the hands of the people themselves through their chosen representatives so that no beneficial changes and regulations of the trial by jury could be made as subsequent experience might dictate, as long as the essentials are preserved. As was said in Beers v. Beers, 4 Conn. 535, it is within the reasonable intendment of the Constitution, so long as the recognized essentials of a common-law jury trial are preserved, to adopt new methods if the public interest demand such changes, and there is nothing in the Constitution of 1875 which requires the General Assembly to forever perpetitate the statutes requiring juries to fix the punishment where alternative punishments are prescribed.

As said by the Attorney-General, the Constitution is not a grant of powers to the General Assembly, but merely contains certain limitations and restrictions upon it, and if there is no provision in it that prohibits the General Assembly from imposing upon the courts the duty of assessing the punishment prescribed within the limits of the law, then it has the constitutional power to so direct and the guaranty of the right of “trial by jury as heretofore enjoyed” in and of itself does not prohibit it as those words simply preserve the right of trial by jury which our former Constitutions had also secured to us.

But I am referred to the decision in Ice Co. v. Tamm, 138 Mo. 385, in which Division Two of this court held a compulsory reference to a referee for the examination of a long account was not an infringement on the constitutional guaranty of trial by jury as heretofore enjoyed. An examination of that case will show that the decision proceeded on the view that inasmuch as the Supreme Court of this State as early as the 15 Mo. 144, in Shepard v. Bank, had ruled that such a reference did not violate the right of trial by jury guaranteed by the Constitution of 1820, and then the people of this State'with full knowledge of that decision continued the same language in the Constitution of 1865, and the General Statutes of 1865, and this court in 1874, prior to the adoption of our present Constitution, in Edwardson v. Garnhart, 56 Mo. 85, had held it was not to be presumed in these circumstances that by the adoption of the Constitution of 1865 the people intended to change the construction placed by this court, on the same statute under the Constitution of 1820, a fortiori, the Constitution of 1875 was not intended to do away with compulsory references in proper cases under that statute, and we said: “This, then, was the state of the law when the Constitution was framed and submitted to the people of Missouri for adoption. As then understood and construed by the court of last resort in this State, neither the Constitution of 1820 nor that of 1865 prohibited the courts from referring cases without the consent of either party in the cases mentioned in the statutes. The right to a jury trial then was modified to this extent by this power to appoint referees. These references had been sanctioned by the statutes, and the opinions of the Supreme Court many years before that Constitution was framed, and when the people adopted it they ratified the provision as to jury trial as it had been enjoyed previously thereto; that is to say, they adopted it with the construction already placed upon it; otherwise, the words ‘as heretofore enjoyed’ are utterly meaningless.” We submit that opinion rests upon sound legal ground.

It has been uniformly and consistently ruled that where 'judicial construction has put a certain meaning on the words of a statute and then the Legislature in a subsequent act in pari materia uses tbe same words, tbe presumption arises that tbe Legislature intended to express the meaning previously put upon them. [McNichol v. Agency, 74 Mo. 457; Sanders v. Anchor Line, 97 Mo. 26.]

And especially is this so when revisions of the laws and constitutions have intervened and the language construed has been retained. [Sanders v. Anchor Line, 97 Mo. 26.]

Outside of the reference to the state of the law at the time of the adoption of the Oonstitution and to show that it had been the same with regard to references since the admission of the State into the Union, the decision throws no light upon the question for decision.

We hold that the construction put upon the words “as heretofore enjoyed” by the Supreme Oourt of Illinois and approved by the Supreme Courts of Indiana and Pennsylvania, is the correct interpretation and that the act in question (section 1838, Eevised Statutes 1899) is not unconstitutional because it permits the court instead of the jury to assess the punishment.

A verdict of “guilty” without assessing the punishment under our laws which permit the jury to fix the punishment is not a failure to find a part of the issue. [State v. Foster, 115 Mo. 451; State v. Robb, 90 Mo. 30.]

In State v. Foster, 115 Mo. 450, it was said: “Among the causes thus alleged in that motion is one claiming that ib the jury alone belonged the fixing of the penalty for the crime of which defendant was found guilty. This contention is without foundation. The jury having failed to assess the punishment it belonged to the court to assess it, and render judgment accordingly (R. S. 1889, sec. 4230).” State v. Wynn, 1 Blackford, 28, confirms this view. In that case the jury returned a verdict “fining defendants $10 each” and it was reversed because the jury did not find them “guilty,” which, said the court, “is a total neglect of the whole subject-matter put in issue.” So that if they had found them guilty they would have responded to the whole issue. "Without that finding no judgment could be imposed. So in State v. Foster, supra, had the jury failed to find defendant “guilty,” the court would have been powerless to punish him, but having done so their verdict was ample to sustain the judgment which we affirmed. The office of the jury at common law is to find the truth of disputed, facts, not to find the law. That is written for the guidance of court and jury alike.

When the jury in a case of felony bring in a verdict of guilty, there is no room or occasion for any waiver by the defendant. The law of this State which has never been questioned provides that in such casé the court shall assess the punishment and render the judgment. [State v. Foster, supra.] His attempted waiver, in the circumstances suggested, would not in the least affect the power of the court to assess his punishment.

It only remains to be added that this statute has been twice construed by this court, once in State v. Knock, 142 Mo. 515, in which it was sustained without a suggestion of uneonstitutionality and the defendant sentenced to the penitentiary, and State v. Hall, 164 Mo. 528, in which the Knock case was approved.

“It needs only to be said that in the determination of a question of the constitutionality of a law it is a settled rule for the guidance of the courts that the acts of the Legislature are presumed to be constitutional, and it is only when they manifestly infringe on some provision of the Constitution, that they can be declared void for that reason. In case of doubt every possible presumption not directly inconsistent with the language and subject-matter is to be made in favor of the constitutionality -of the Act.” [Phillips v. Railroad, 86 Mo. 543; State v. Layton, 160 Mo. 474; Cooley Const. Lim. (6 Ed.), p. 216.] With the highest courts of our sister States maintaining the constitutionality of laws like this, it certainly can not be said to be removed from doubt, even if we do not accord them the meed of unanswerable argument.

III. The act is a general and not a special law. It operates equally upon all who violate its provisions and establishes one mode of punishment for all such. It operates in every county of the State. [State ex inf. v. Ins. Co., 150 Mo. 136.]

IV. The fact that the jury assessed the punishment, does not vitiate the verdict. The court could ignore it and assess the punishment itself, and must be held to have done so, by . adopting it, and rendering judgment. This identical case came before the Court of Appeals in Harvey v. Commonwealth, 23 Gratt. 941, and it was ruled that although it was the duty of the court to assess the punishment and it had directed the jury to do so, and the jury had fixed the punishment, it was held it did not vitiate the verdict or the judgment of the circuit court.

V. I find no error in the admission of Mrs. Irwin’s testimony as to the declarations of the prosecutrix to her. This was drawn out by the defendant himself, and he can not complain of error committed at his own instigation and of his own seeking.

VI. In the divisional opinion much time is devoted to discussing whether defendant was, or was not guilty of “rape,” and the conclusion was reached that he was not. As he was not indicted for rape, the conclusion absolves the jury and criminal court of having convicted him of a crime of which he was not guilty, and for which he was not indicted. The indictment is bottomed upon section 1838 which prescribes that if a person over sixteen years of age have carnal intercourse with .an unmarried female of previously chaste character, between the ages of fourteen and eighteen years of age, he shall be deemed guilty of a felony and punished as therein prescribed. It is apparent that within the ages mentioned the female is in-, capable under the law of consenting to the defilement of her person. But it is argued by the able counsel for defendant that the court erred in refusing to instruct the jury that if they believed defendant had sexual intercourse with the prosecutrix against her will and consent, and that such intercourse was had by means of force and violence, and prosecutrix resisted having such intercourse, they should aquit defendant, and in instructing that sexual intercourse by a man over sixteen years of age with an unmarried female of previous chaste character who is between the ages of fourteen 'and eighteen years, would render him guilty under this law whether said act was accomplished by force or with or without her consent.

The learned criminal court unquestionably followed the decision of this court in State v. Knock, 142 Mo. 515, in which ease this statute first received a construction by this cdurt. In that case, as will be seen by a reference to the statement of the facts on page 520 of the said report, a young lady had gone to sleep in her own room, in the residence of the defendant, who was her uncle by marriage, and during the night was aroused by the presence of the defendant who was attempting to get on top of her. “He grabbed her hands and held them over her mouth to prevent her screaming. With his knees he forced her limbs apart and had sexual intercourse with her.” On another occasion, he entered her room while she was dressing and told her if she screamed he would kill her and again forcibly had connection with her. In that case the criminal court instructed the jury that sexual intercourse with an unmarried female of previously chaste character, who is between the ages of fourteen and eighteen years of age, is a violation of the law with or without her consent.

The defendant in that case requested the court to give the folio-wing instruction: “The court instructs the jury that if* you believe from the evidence that the defendant had carnal knowledge of the prosecutrix against her will and only accomplished the act by the use of force, then the defendant is not guilty of the offense charged, and you must acquit him.” This the trial court refused. Speaking of this action of the court, this court said: “The instructions asked by defendant were properly refused, for several reasons. In tbe first place, it is not the law, as asserted in defendant’s first instruction, tbat if Torce’ be used, tbis exonerates tbe force-user when charged with tbe crime mentioned in tbe act of 1895, supra.”

Obviously tbe criminal court did not err in tbis case, unless tbat opinion was erroneous. We can not agree tbat there was no evidence of force in tbat case. Indeed there is a striking similarity in tbe character of force used in the two cases.

Was tbe decision in the Knock case improperly decided?

Clearly the statute itself makes no distinction between sexual intercourse with and without consent or with and without force. In respect to tbe matter of consent it is not a new character of legislation in tbis State. Thus section 3480, Revised Statutes 1889 (now sec. 1837, R. S. 1899) provided that “every person who shall be convicted of rape, either by carnally, and unlawfully knowing any female child under the age of fourteen years,” etc., and it has been uniformly ruled that “carnal knowledge of a female child under fourteen years of age is rape under this statute whether accomplished with or without force, or with or without tbe consent of the child.” [State v. Wray, 109 Mo. 599; State v. Meinhart, 73 Mo. 562; State v. Houx, 109 Mo. 654; State v. Baskett, 111 Mo. 272; State v. Duffey, 128 Mo. 557; State v. Baker, 136 Mo. 74; State v. Burries, 126 Mo. 565.]

If, as we have so often held, it is competent for the legislature to provide that carnal knowledge of a female child under fourteen shall be rape irrespective of consent or force, why could it not provide that if a man of over sixteen years of age shall have carnal knowledge of an unmarried female of previously chaste character between fourteen and eighteen years of age he is guilty of a felony “irrespective of force or consent on her part?”

But the argument is that the carnal knowledge under section 1838 is merged into the higher crime of rape when the evideuce discloses force.

Bishop in his Crim. Law (7 Ed.), vol. 1, sec. 786, says: “The doctrine of merger is applicable to two classes of cases— the one, where a criminal act falls within the definitions of two or more separate offenses; the other, where offenses are so graded that the less culpable are included in those involving a larger guilt as shown at section 780 in our last chapter. The general rule is, as there explained, that the prosecuting power may select for conviction any one of these offenses, and the defendant can not object though his guilt covers also a larger or different one. Merger, in the criminal law, occurs where the same act of crime is within the definition of a misdemeanor and likewise a felony, or of a felony and likewise of a treason; and the rule is, that the lower grade merges in the higher.” That is, an act can not be both a_ felony and a misdemeanor, “a doctrine which applies only where the identical act constitutes both offenses.”

Again, in section 791, same volume, he says, “Subject to whatever exception may be found in the doctrine of merger, a criminal person may be holden for any crime, of whatever nature, which can be legally carved out of his act. He is not to elect, but the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or of a lower, or of one differing in nature, whether under a statute or at the common-law, he can not be heard to complain, the question being whether it shows him to be guilty of the one charged.”

In Commonwealth v. McPike, 3 Cush. 181, the defendant was held to have no just ground of objection to a conviction under an indictment for manslaughter because the facts proved he had been guilty of murder. Our statute expressly permits this in all cases in which there are degrees of crime and the finding is of a less degree than that charged in the indictment and a verdict for manslaughter or murder in the second degree will not be disturbed because the evidence shows defendant guilty of murder in the first degree. But here we are confronted with State v. Woolaver, 77 Mo. 103; State v. Strattman, 100 Mo. 540, and State v. Lingle, 128 Mo. 528, all of which follow State v. Ellis, 74 Mo. 385, in which it was ruled on an indictment for incest that if it appeared that the sexual intercourse had been effected by force it was rape and . the conviction for incest could not stand.

None of these cases, except State v. Ellis, discuss the principle on which this ruling was based, but simply follow it. In that case it is put upon the ground of merger; that rape was the higher crime and incest the lesser and the latter was merged in the rape. The correctness of that decision is now challenged.

In all of those cases except the Ellis case it was ruled that before the jury could acquit on the ground that the crime of rape had been shown the jury must believe that if the defendant were on trial for rape it would be their duty to convict him of that charge, and in each this court held the conviction of the less offense proper notwithstanding in each the female prosecutrix had testified she was “forced,” this court saying that the evidence fell short of making out a case of rape.

In State v. Ellis, this court cited the following authorities: People v. Harriden, 1 Parker, C. C. 344, a nisi prius case, a prosecution for incest, by a father with his daughter, and the trial judge ruled that the statute against incest applied only to cases where the connection was by mutual consent, and if the connection was accomplished by force, to such an extent as to render defendant guilty of rape, incest was not sustained, and to the same effect is Noble v. State, 22 Ohio St. 541, in which it was also held that emission was an essential in incest, a doctrine nowhere else recognized in this country. In Croghan v. State, 22 Wis. 444, in a prosecution for seduction it was held error to instruct the jury that “if the woman ultimately consented to the illicit intercourse, the crime was seduction and not rape, although she consented partly through fear,” etc. The court held the woman must be tempted, lured and led astray through influence and persuasion employed by her seducer until she freely consented, in order to constitute seduction. That the instruction was erroneous as to the proof ini seduction we have no doubt.

DeGroat v. People, 39 Minn. 124, was decided upon the ground that in incest both parties must consent, under the statute of that State, and as there was evidence of force it could not be incest. In State v. Thomas, 53 Iowa 214, it was held rape and incest could not be charged as a compound offense under the statute of that State, Beck and Day, JJ., dissenting.

Whereas, in Com. v. Goodhue, 2 Met. (Mass.) 193, the indictment was for rape and the conviction for incest, the latter being included in the former.

In each of these eases it will be seen that the basis of the opinion is that whatever other crime defendant might be guilty of, he was not guilty of the particular crime of incest or seduction as the facts would not sustain the statutory definition of those offenses, and the decisions are not referable to the technical doctrine of merger as defined by Bishop and other law- * writers. Those cases do not determine that one criminal transaction may not present combinations which leave an election in the State in dealing with the offender. Thus, robbery is larceny aggravated by the fact that goods are taken from the person of the owner by-violence or putting in fear.

Blackstone, book, 4, p. 243, says: “Open and violent larceny from the person, or robbery, the rapiña of the civilians, is the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear.”

In Bonsall v. The State, 35 Ind. 462, it was ruled that, where one is indicted for larceny, and the evidence shows he might have been indicted for robbery, and therefore the State has arraigned him for a less aggravated crime than that of which he is really guilty, he can not complain.”

In Hicky v. The State, 23 Ind. 21, the defendánt was in-dieted and convicted for grand larceny, but the proof showed he had committed robbery and it was argued in his behalf that the conviction was erroneous, but the Supreme Court held otherwise, saying larceny was included in robbery, and, as a general rule, “a criminal person may be holden for any crime,. of whatever nature, which can be carved out of his act,” citing 1 Bishop’s Crim. Law, sections 419, 536, 682; vol. 2, secs. 966, 973, 675, 410, 707; Lewis Crim. Law, 450, 455, 466; People v. McGowan, 17 Wend. 386.

Applying this principle to the statute before us and granting that the defendant might have been indicted and convicted for rape, a crime of the most atrocious character, which involved a forcible violation of the person of the prosecutrix, how can the defendant complain because the State has elected to prosecute him for a violation of her person under this statute in which it is unnecessary to prove a forcible deflouring of' the prosecutrix?

In what does it differ from a prosecution for larceny, when the proof shows robbery, or for manslaughter when the proof shows murder, or for’murder in the second degree when the proof shows murder in the first degree ?

Upon mature consideration we are fully satisfied that the construction given this statute in State v. Knock, 142 Mo. 515, was correct, and that the criminal court correctly ruled that proof of force did not entitle the defendant to an acquittal, every essential of the crime being otherwise proven, and it follows that State v. Ellis, 74 Mo. 385, and the cases named which have followed it, should on this point no longer be followed.

As to the sufficiency of the evidence to sustain the verdict of the jury, the testimony of the witnesses was heard by the jury. The jury had an opportunity of seeing them and observing their demeanor, on the stand, and it was their peculiar province to weigh their testimony and believe or disbelieve it. They believed tbe prosecutrix and did not believe tbe defendant’s witnesses.

Tbe verdict bas been approved also by tbe judge of tbe criminal court wbo also bad tbe advantage of seeing tbe witnesses and observing tbeir manner.

We discover no sucb evidence of prejudice or partiality as would justify us at this distance in rejecting tbe verdict of tbe jury, and tbe judgment should accordingly be affirmed.

Robinson, Brace and Valliant, JJ., concur in toto; Burgess, C. J., concurs in tbe opinion as to tbe law of tbe case, but thinks tbe judgment should be reversed and tbe,cause remanded for further trial upon tbe ground of tbe want of substantial evidence to sustain tbe verdict;

Sherwood and Marshall, JJ., dissent, and express their views in a dissenting opinion by Sherwood, J.