State v. Thayer

• Decision Date: 19 June 1900
• Citation: 58 S.W. 12,158 Mo. 36
• Parties: STATE v. THAYER.
• Court: Missouri Supreme Court

58 S.W. 12

158 Mo. 36

STATE v. THAYER.

Supreme Court of Missouri.

June 19, 1900.

MISDEMEANOR — INDICTMENT — INFORMATION — APPEAL.

Rev. St. 1899, art. 10, § 2696, provides that, in all cases of final judgment rendered on any indictment, an appeal will lie to the supreme court. Section 2482 provides that all proceedings on information in courts of record shall be governed by the law and practice applicable to trials on indictments for misdemeanors. 2 Rev. St. 1899, p. 2566, § 3, creating the criminal court of Jackson county, provides that appeals from final decisions and judgments of that court, and writs of error from the supreme court to that court, shall be allowed and prosecuted in the same manner as is provided by law in cases of appeals from or writs of error to circuit courts in criminal cases. Held, that defendant, who was convicted in the criminal court of Jackson county of a misdemeanor, on an information filed by the prosecuting attorney, is entitled to an appeal to the supreme court.

Sherwood, Burgess, and Marshall, JJ., dissenting.

In banc. Appeal from criminal court, Jackson county; John W. Wofford, Judge.

William B. Thayer was convicted of misdemeanor, on an information filed by the prosecuting attorney, and he appeals. Reversed.

The following is the brief of the attorney general, referred to in, and made a part of, the dissenting opinion of SHERWOOD, J.:

"Counsel for appellant urge that because in many instances appeals have been taken from judgments of conviction on misdemeanors, and the supreme court has passed on the cases, and the jurisdictional question has been passed sub silentio, therefore this court should hold that it now has jurisdiction; in other words, that, because this court has assumed jurisdiction heretofore, it ought not now to admit its error, but to maintain it was right, by still assuming jurisdiction. The federal supreme court has had this question

[58 S.W. 13]

of jurisdiction being passed sub silentio before it, and has rendered decisions upon the effect of a court assuming jurisdiction where none existed. In the case of Cannon v. U. S., 116 U. S. 55, 6 Sup. Ct. 278, 29 L. Ed. 561, the federal supreme court, without objection, decided upon the merits of a writ of error to the supreme court of the territory of Utah, sued out by one convicted of a crime which was neither bigamy nor polygamy, nor punishable with death, but in which case the defendant below had been convicted under the statute, and had been sentenced to six months' imprisonment and to pay a fine. The statute under which the defendant was convicted was one directly amending the statute against bigamy or polygamy in the territory of Utah. The statute which was amended allowed an appeal on a conviction for bigamy or polygamy. The amendment to the statute created an offense described in the statute, of cohabiting with more than one woman, and was not legally either bigamy or polygamy. This same statute came under consideration again in Snow v. U. S., 118 U. S. 346, 6 Sup. Ct. 1059, 30 L. Ed. 206, where the defendant had been convicted, and sentenced to imprisonment for six months, and fined $300. The question was raised that the supreme court had no jurisdiction, because no statute expressly authorized an appeal in this class of cases. The offense of which the defendant was convicted was cohabiting with more than one woman. The statute was directed at the practice of polygamy in the territories of the United States. The statute, before its amendment, provided that, if a defendant was convicted of bigamy or polygamy, a writ of error should lie. The amendment did not take away the right of appeal in case of bigamy or polygamy. The supreme court held that the statutory offense described in the amendment to the statute, of cohabiting with more than one woman, was not identical with the offense of bigamy or polygamy, and although the statute authorized a writ of error to lie in a case of a conviction of bigamy or polygamy, as no express statutory authority was given for an appeal under the law prohibiting cohabitation with more than one woman, therefore no appeal could be had, and the federal supreme court had no authority to entertain the appeal, because it had no jurisdiction in the case. The counsel for the appellant in that case urged that the court had taken jurisdiction of the case of Cannon v. U. S., 116 U. S. 55, 6 Sup. Ct. 278, 29 L. Ed. 561, and affirmed the judgment of conviction, under the same act of 1882, but the federal supreme court said: `The question of jurisdiction was not considered, in fact, in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs. * * * But, as the * * * want of jurisdiction is clear, we have decided to vacate our judgment and recall the mandate, and dismiss the writ of error for want of jurisdiction.' The counsel for appellant in the case at bar urge that the question of jurisdiction was not presented to the court or in the brief of counsel in the cases referred to by them which have been before this court on appeal from conviction on information, and argue, therefore, this court should be precluded from deciding now that it has no jurisdiction. But the United States supreme court says that the very fact that the question was not raised by counsel in argument or in the briefs, nor in any manner called to the attention of the court, is the reason why the former action of the court in assuming jurisdiction should not be sustained, and that when the question of jurisdiction is raised the court should declare what the law is, rather than what the counsel or the court think the law ought to be. In the case of U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445, the supreme court again decided that no appeal could be taken in a criminal case unless expressly authorized by a statute. The court in this case cited and approved the opinion, heretofore referred to, in 118 U. S. 346-354, 6 Sup. Ct. 1059, 30 L. Ed. 206, holding that the fact that a court may have passed upon cases in which it had no jurisdiction did not authorize it to continue to do so. In 1803 the federal supreme court, no objection being made, took jurisdiction of a writ of error sued out by the United States to the circuit court for the District of Columbia in a criminal case. U. S. v. Simms, 1 Cranch, 252, 2 L. Ed. 98. But in 1805, in another case, the United States supreme court, upon full argument and consideration, held that it had no jurisdiction of a writ of error in a criminal case, and overruled the case in 1 Cranch, 252, 2 L. Ed. 98. Chief Justice Marshall, speaking for the court, said: `No question was made in that case [referring to the case in 1 Cranch, 252, 2 L. Ed. 98] as to the jurisdiction. It passed sub silentio, and the court does not consider itself bound by that case.' U. S. v. More, 3 Cranch, 159-172, 2 L. Ed. 397; U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445.

"The counsel for appellant insists strongly that, in a majority of the cases that have come to this court on appeals from conviction on an information, the court did not pass upon the question of jurisdiction, and that therefore the jurisdiction exists. The question of jurisdiction has been raised but in four cases, and in those four cases it has been held the court had no jurisdiction. The very reason counsel for appellant urge as grounds for the court having jurisdiction now, to wit, because its jurisdiction has been usually unquestioned, is the exact reason, the federal supreme court says, why such cases, acted on sub silentio as to jurisdiction, are not binding on a court, and constitute no authority for sustaining jurisdiction. The case in 3 Cranch, 159-172, 2 L. Ed. 397, is an authoritative declaration by the federal supreme court that a court will not be bound

[58 S.W. 14]

by a case in which the question in issue is not considered by the court in deciding the case. In other words, unless a court examines and decides a question, it has not judicially passed on it, and therefore, no matter how many times sub silentio a court has passed a question by, the court will not be bound by such action. The only argument appellant's counsel make in the case at bar, for the court to assert its jurisdiction and allow appeals, is that so many times appeals have been taken from convictions on informations, and the question of jurisdiction passed sub silentio, that now it is too late to raise the question. But this very fact of the jurisdictional question not being raised is the legal reason why the many cases cited by counsel for appellant are not authority to sustain the right of appeal. U. S. v. More, 3 Cranch, 159-172, 2 L. Ed. 397; U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445; Snow v. U. S., 118 U. S. 346, 6 Sup. Ct. 1059, 30 L. Ed. 206.

"Can it be said this court has sustained the right of appeal from conviction on an information in many cases, when an examination of the very cases cited shows the question was not even raised? The cases cited by counsel for appellant from the Missouri Reports to sustain the right of appeal from conviction on an information all show that the question of jurisdiction was not raised or discussed, or decided by the court; and under the rulings of the federal supreme court, and of all other courts, so far as I am aware, if this court has erroneously entertained cases of this kind, it is the court's duty to correct the mistake when its attention is directed to it. When a case arose in which a prior decision was attacked on the ground that it had no support from the cases wherein it was purported to be derived, the supreme court of Pennsylvania yielded, and said, in regard to the right and duty of the court to correct errors when practicable: `Do we violate the doctrine of stare decisis by now correcting the mistake, and going back to the...