State v. Thayer

58 S.W. 12, 158 Mo. 36, 1900 Mo. LEXIS 58

• Court: Supreme Court of Missouri
• Decided: June 30, 1900
• Status: Published

Opinions

BRACE, J.

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 court óf a misdemeanor, on information. Eor it may be conceded at the outset that the remedy by appeal in criminal cases was unknown to the common law, and if it exists at all in a given case, it is by virtue of some constitutional provision or statutory enactment.

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 2696 on tbe trial of misdemeanors in tbe circuit court by indictment the remedy of appeal is expressly allowed, and made applicable to sucb trials, and by section 2482, “tbe trial and all proceedings on information in sucb cases are to be governed by tbe law and practice applicable to trials upon indictment,” it would seem necessarily to follow that an appeal was intended to lie as well in tbe case of a prosecution by information as by indictment. This construction, flowing -ex vi termini from tbe text of tbe statute must prevail unless in tbe history of tbe legislation and tbe circumstances of tbe introduction of these two methods of prosecution into our code, some reason be found for a different construction.

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 case, whether felony or misdemeanor. Hence the appellate jurisdiction conferred upon the Supreme Court by the Constitution was and could only be exercised by means of a writ of error or other common law writ (Jim v. State, 3 Mo. 147; Calloway v. State, 1 Mo. 211), and this continued to be the only method by which a review could be had in the appellate court by the defendant upon conviction of any criminal offense in the circuit court, until the revision of 1835, when section 2696, supra, was adopted and incorporated into the Code of Criminal Procedure, by the revision of that year, as section 1, article 8 (R. S. 1835, p. 498). The only change made in the section since, was by the revision of 1845, section 1, article 8, page 888, when the words “the defendant” omitted in the revision of 1835, were inserted between the words “allowed” and “if,” making the section read as it does now, and ever since has read in the statutes.

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 provisions for the summary trial and punishment of offenses by slaves, which lend no assistance to this investigation, with the exception of these petty offenses made cognizable before a justice of the peace, all other misdemeanors were indictable offenses, and as they could be prosecuted only by indictment, when section 2696, as originally enacted, became operative, it afforded a remedy by appeal to every person convicted in the circuit court of a misdemeanor, except such persons as might therein be convicted on appeal from a justice of the peace, of some of the petty offenses mentioned above, the penalty of which was by fine only, and the fine less than one hundred dollars. Eor which cases no remedy by appeal to the Supreme Court being provided, by the statute, they were left in the same condition as were all criminal cases before the enactment of this section, reviewable as at common law. The law of criminal procedure remained substantially in this condition until the adoption of the Constitution of 1875. At the next General Assembly after the adoption of that Constitution for the purpose of carrying into effect the provisions of article 2, section 12 thereof, it was enacted that, “hereafter all misdemeanors shall be prosecuted in the courts having jurisdiction thereof, either by indictment, as now provided by law, or by information as provided by this act, as concurrent remedies” (Laws 1877, p. 354, sec. 1), and by section 10 (page 356) of that act it was provided, that “the trial and all proceedings upon any information filed under the provisions of this act shall be governed by the law and practice applicable to trials upon indictments for misdemeanors so far as such law and practice can be made applicable thereto.” Thus was prosecution for misdemeanors by information introduced into our criminal code; section 10 of this act with slight verbal changes, becoming section 2482 of the Eevised Statutes 1899, now under consideration. And thus it was first provided by statute that while theretofore all misdemeanors had been prosecutable only by indictment, thereafter they might be prosecuted either by indictment or information, as concurrent remedies. If nothing more had been said, as the right of appeal by the defendant was a part of the remedy by indictment in the then existing law, a strong presumption would arise that the same right was intended to be secured to the defendant in the new proceeding that was thereafter to be concurrent with the old one; otherwise the new would not run consistently with the old, and the citizen might be deprived of a very essential right secured to him by the former remedy, simply by the adoption by the prosecutor of the later one, thus in this particular destroying the concurrency of the two, and putting this right within his discretion and at his mercy, and A. prosecuted for a misdemeanor by indictment would have the right of appeal, while 33. prosecuted by information for the same offense would have no such right — a vicious power of discriminátion which should always be presumed against. The right was not left, however, in the domain of presumption, but put beyond question by the express provision that all proceedings on information should be governed by the law and practice applicable to trials upon indictment as far as the same could be made applicable thereto. And as by the law and practice then existent applicable to trials of misdemeanors upon indictments, to- which the section refers, an appeal was allowed the defendant, upon conviction in the circuit court, and as snch allowance is just as applicable to a conviction on information as on indictment, the right thereto is as clearly given as if it had been written into the then existent law, in so many words. In the course of revision, section 10 of the original act, now section 2482, Revised Statutes 1899, has been somewhat condensed. But the provision of the Constitution in pursuance of which it was enacted, is the same, and the section itself remains the same in purport and meaning as in the beginning. Since which time many cases of appeal by defendants from the circuit court on convictions of misdemeanors, have come to this and the other appellate courts of the State and these courts have invariably, for the last quarter of a century, exercised their appellate jurisdiction in such cases. While the right of appeal under the statute in these cases was not questioned, and they can not therefore be regarded as authority for its existence, nevertheless they furnished strong persuasive evidence that such has been the uniform construction of these statutes by the courts and the profession from the beginning.

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 1889, now section 2482, supra. But when these two sections are considered together in their proper relation to and bearing upon each other, and construed in connection with the code of criminal procedure, of which they form constituent parts, in the light of the circumstances attendant upon their introduction into that code as disclosed by their legislative history, the conclusion, it seems to us is irresistible, that an appeal does lie for the defendant from a conviction in the circuit court of misdemeanor on information, that State v. Brown, supra, should be overruled, and that the judgment of the criminal court of Jackson county in this case should be reversed and the defendant discharged. It is accordingly so ordered.

All concur, except Sherwood, Burgess and Marshall, JJ., who dissent.