The State v. Gustin

• Decision Date: 31 October 1899
• Citation: 53 S.W. 421,152 Mo. 108
• Parties: The State v. Gustin, Appellant
• Court: Missouri Supreme Court

53 S.W. 421

152 Mo. 108

The State v. Gustin, Appellant

Supreme Court of Missouri, Second Division

October 31, 1899

Appeal from Clinton Circuit Court. -- Hon. W. S. Herndon, Judge.

Affirmed.

E. C Hall for appellant.

(1) The court erred in finding against the defendant on his plea of autrefois convict. (a) A former prosecution for an offense is a bar to a subsequent prosecution when the former prosecution was for an offense which constitutes an element of the latter charge. Thus a conviction for petit larceny is a bar to a subsequent prosecution for grand larceny on the same facts. 11 Am. and Eng. Ency. of Law (1 Ed.), 942. (b) Autrefois convict only requires the transaction to be the same. Wright v. State, 17 Tex.App. 152. (c) Where a properly constituted court, acting under the authority of an ordinance of a city, punishes a person for violation of an ordinance, he can not again be punished for the same offense under the general laws of the State. State v. Cowan, 29 Mo. 330; State v. Thornton, 37 Mo. 360; State v. Freeman, 56 Mo.App. 579. (d) A person convicted of a less offense can not be again put upon trial for a greater offense when the same facts are required to establish it as in the former case. State v. Hatcher, 136 Mo. 641. (2) The court erred in giving the instruction for the reason that the same did not conform to the charge in the indictment and was misleading. State v. Smith, 119 Mo. 439. The court should have instructed the jury upon all questions of law arising in the case. This is mandatory. R. S. 1889, sec 4208; State v. McGuire, 113 Mo. 670; State v Nelson, 118 Mo. 124; State v. Stonum, 62 Mo. 596.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

It would be serious folly to permit one who is guilty of a felony to plead guilty to a simple misdemeanor in a court of a municipal corporation and then when indicted by the State for the felony, to plead the prosecution for the misdemeanor as a bar to prosecution under the indictment. The crime charged in the indictment is one over which the town or city of Plattsburg had no jurisdiction, either concurrent or exclusive and the trial court did not err in sustaining the State's motion to quash defendant's plea of autrefois convict. We concede that, had the indictment charged only a simple assault, the plea would be good. The defendant was not tried in the mayor's court for the felony, and had he been, it would not be a good plea in bar for the reason that the municipal court was void of jurisdiction. Constitution, sec. 12; State v. Johnston, 7 Mo. 183; State v. Clayton, 100 Mo. 519; State v. Greene, 66 Mo. 63; State v. Melton, 117 Mo. 618; Pilot Grove v. McCormick, 56 Mo.App. 530; R. S. 1889, sec. 4055; State v. Wonderly, 17 Mo.App. 597; State v. Cole, 48 Mo. 70; Jefferson City v. Courtmire, 9 Mo. 692.

GANTT, P. J. Burgess, J., concurs; Sherwood, J., absent.

OPINION

GANTT, P. J.

The defendant was indicted at the May term, 1897, of the circuit court of Clinton county for the felonious assault upon one Fernando A. Harter by feloniously shooting at said Harter with a certain loaded pistol and thereby endangering the life of said Harter.

At the January term, 1898, he was put upon his trial and found guilty as charged, and his fine assessed at one hundred dollars. From this he appealed to this court.

An inspection of the transcript discloses that although the assault of which defendant was convicted was committed September 16, 1896, he was not indicted until the May term, 1897. That he was not tried until January, 1898, and his appeal was not filed in this court until May 25, 1899, fifteen months after the granting of the same.

The sentence of the court was that the defendant stand committed to the custody of the sheriff until he paid his fine and the costs. No supersedeas was granted by the circuit court and none by this court. It does appear, however, that on the twenty-second day of December, 1898, the sheriff approved an appeal bond to this court. It would seem that if the sheriff complied with the sentence of the court, and there appears no excuse for not so doing, this fine would have been served out long before this unauthorized and so-called appeal bond was executed. The defendant has not paid the docket fee in this court, but upon the representation that the defendant was out on bond, and had in some manner obtained a perpetual stay, the clerk was ordered to docket this cause. When an appeal in a criminal case is not prosecuted without unnecessary delay, no good reason can be given why it should not be affirmed. Delays like this must and will continue to be a reproach to the law. It is now nearly three years since the indictment in this case was preferred.

I. The question raised upon this record is, however, an exceedingly important and interesting one.

When the defendant was called upon to plead to the indictment for felonious assault, he filed a special plea in which he averred that on the 17th day of September, 1896, the city marshal of Plattsburg filed a written information before Hon. E. C. Hall, mayor of said city, charging defendant with unlawfully touching, striking, beating and wounding said Harter, contrary to section 14 of the ordinances of said city, entitled "Miscellaneous Offenses;" that said mayor issued his warrant for the arrest of defendant and said marshal arrested defendant and took him before said mayor, and thereupon the following judgment was rendered by said mayor:

"City of Plattsburg, vs. Wm. J. Gustin.

"Now, on this 17th day of September, 1896, comes James R. Gibbany, city marshal, and files herein his complaint charging that the defendant Wm. J. Gustin, did on the 16th day of September, 1896, at said city, then and there unlawfully assault, beat, strike and wound one F. A. Harter in a rude and angry manner contrary to ordinance, whereupon a warrant was issued for the arrest of said defendant and placed in the hands of the marshal and forthwith comes the marshal and brings the said defendant into court and the defendant pleads guilty. His fine is fixed at the sum of one dollar and it is ordered that the city recover of defendant the said sum of one dollar and costs taxed at the sum of six dollars and forty-five cents.

"E. C. Hall, Mayor."

It was admitted by the State that the assault charged in the indictment was the same to which defendant pleaded guilty in the mayor's court save and except the prosecuting attorney denied that it was a mere assault and battery, but insisted it was a felonious assault of which the mayor had no jurisdiction.

Both sides having waived a jury for the trial of this special plea, and submitted it to the court, the circuit court found said conviction before the mayor on said plea of guilty was no bar to the present indictment for felonious assault. This ruling is the basis of the assignment of error in this case.

The Constitution of this State guarantees that "no person after being once acquitted by a jury, shall again be put in jeopardy of life or liberty for the same offense," and the defendant invokes this provision as a protection against the trial and conviction in this case. It will be observed that the Constitution uses the words "for the same offense." Such also was the rule of the common law. The former acquittal or conviction must have been "for the same identical act and crime." [4 Blackstone, Com. 336.] Chitty in Vol. I, Criminal Law, 452, says, "To entitle the defendant to this plea, it is necessary that the crime charged be precisely the same." In Com. v Roby, 12 Pick. 504, Chief Justice Shaw says, "In considering the...