79 Mo. 113 (Mo. 1883), State v. Grant

Citation:79 Mo. 113
Opinion Judge:SHERWOOD, J.
Party Name:THE STATE v. GRANT, Appellant.
Attorney:W. A. Harnsberger and R. H. Field for appellant. D. H. McIntyre, Attorney General, for the State.
Court:Supreme Court of Missouri
 
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Page 113

79 Mo. 113 (Mo. 1883)

THE STATE

v.

GRANT, Appellant.

Supreme Court of Missouri.

October Term, 1883

Appeal from Jackson Criminal Court. --Trial before HON. NOAH M. GIVAN, Judge of the Seventh Judicial Circuit.

REVERSED

This was an appeal from a conviction of murder in the first degree for the killing of one Patrick Jones, a policeman of Kansas City. The record showed substantially the following facts, viz: That at just about dark, on the evening of April 3rd, 1882, Jones was returning home from day duty as policeman, and was about to enter his gate, fronting on St. Louis avenue, in said city, when one George Miller hailed him in a friendly way, and deceased thereupon stood with Miller, on the sidewalk, and they there engaged in conversation for a few moments about the killing of Jesse James, which had occurred that day. While engaged in this conversation, two negro men, each having a bucket of butter, passed along by deceased and Miller, on the sidewalk, going westwardly. Deceased noticed them as they passed, and winked at Miller, and Miller responded, " stolen butter." When the men with the butter had proceeded only a few feet, the deceased started after them. The deceased pursued them but a short distance when he was slain by one of them shooting him with a pistol. The State offered evidence tending to prove that defendant was one of the two men bearing the butter. Defendant's evidence tended to prove the contrary.

Miller being offered as a witness on the part of the State, was objected to because he had been convicted at the February term, 1878, of the criminal court of Jackson county, of petit larceny. The objection was overruled and Miller was allowed to testify.

Etchingham, another witness for the State, against the objection of defendant, was allowed to testify that about two years before the homicide defendant had said he " would kill any damn son-of-a-bitch of a policeman who tried to arrest him again."

Against the objection of defendant, the State was allowed to show that the butter in the possession of the two men had just been stolen from the office of Adams Express Company. It was conceded that Jones had not heard of the theft when he attempted the arrest

Defendant read in evidence the deposition of Martha Canfield, who testified that she saw the whole of the difficulty that resulted in the killing of Jones, and that his slayer and the man with him were both mulattoes and not black, like defendant; that she was about twenty feet from Jones and about twenty-five feet from his slayer when the fatal shot was fired. By way of impeaching this witness, the State offered and was allowed to read in evidence an affidavit given by her before her deposition was taken, and filed by the defendant after a former trial of this case, in which she stated that she was near enough to the parties to have placed her hand upon them during the difficulty. This affidavit was not shown to the witness when she gave her deposition; nor was she asked to explain the discrepancy between her statements. The State was also allowed to show that this witness had been arrested for drunkenness, that she had the reputation of being an unchaste woman, and that this reputation applied to blacks and whites alike. In rebuttal of this testimony the defendant was allowed to show by several witnesses that before her deposition was taken the witness made statements to them consistent with the deposition.

W. A. Harnsberger and R. H. Field for appellant.

D. H. McIntyre, Attorney General, for the State.

SHERWOOD, J.

This cause has come again to this court on appeal. When it was here on a former occasion the judgment was reversed because of the error committed in failing to instruct the jury in reference to the knowledge of the defendant of the official character of the deceased. State v. Grant, 76 Mo. 236. Since then there have been two juries empanelled in the cause, the first failing to agree, and the second returning a verdict of murder in the first degree, as was done by the jury on the first trial; hence this appeal in which we are not only called upon to review fresh errors, which it is alleged occurred at the recent trial, but also asked to reconsider some of the rulings made when the cause was here before.

I.

The first point to which attention will be directed is, whether error was committed in admitting, over the objection of the defendant, the witness Miller, to testify on the part of the State. Miller, in February, 1878, had been convicted of petit larceny, and the record of such conviction was produced by the defendant upon making such objection. In order to determine the point thus presented, it will be necessary to determine the meaning, force and effect of certain statutory changes which were made by the Revised Statutes of 1879, i . e., whether the legislature intended them to apply to antecedent convictions, and if so, whether it was in the power of the legislature thus to apply them. As the law stood at the time of Miller's conviction, the General Statutes were then in force, section 66, chapter 201, providing that " Every person who shall be convicted of arson, burglary, robbery or larceny, in any degree in this chapter specified, or who shall be sentenced to imprisonment in the penitentiary for any other crime punishable under the provisions of this chapter, shall be incompetent to be sworn as a witness or serve as a juror in any cause, and shall be forever disqualified from voting at any election, or holding any office of honor, trust or profit, within this State." In the revision of 1879 the words " to be sworn as a witness," were omitted. § 1378. Similar statutory changes also occur in the present revision. §§ 1416, 1467. Do these omissions, these changes in the law, apply retrospectively? Were they intended to apply in that way?

If there is any rule for the construction of statutes well settled in this State, it is this: That they are to operate prospectively, and not otherwise, unless the intent that they are to operate in such an unusual way, to-wit: retrospectively, is manifested on the face of the statute in a manner altogether free from ambiguity. State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Ferguson, 62 Mo. 77; Thompson v. Smith, 8 Mo. 723; State ex rel. v. Hays, 52 Mo. 578. In the case last cited the rule, is announced by Ewing, J., in words still more emphatic. He says: " Statutes are not to be construed as having a retrospective effect, unless the intention of the legislature is clearly expressed that they shall so operate, and unless the language employed admits of no other construction." The same rule is stated by Mr. Sedgwick: " Courts refuse to give statutes retroactive construction unless the intention is so clear and positive as by no possibility to admit of any other construction." Construction of Stat.: Const. Law, 166, et seq., and cases cited.

Abundant authority elsewhere supports the position here taken. In Wisconsin, when speaking of the intention of the legislature, the supreme court of that state says: " There is language used in the law of 1865, which, in its broad general sense might, perhaps, be held to apply to tax deeds of municipal corporations previously executed. It declares that the grantee named in any deed made by the treasurer of any incorporated city or village, on the sale of lands for the non-payment of taxes, may at any time within three years after the date of such conveyance commence an action, etc." " This language, however, must be construed as applying to deeds executed after the passage of the law. For the rule is well settled that statutes are not to be construed as having a retrospective effect unless the intention of the legislature is clearly expressed that they shall so operate. Seamans v. Carter, 15 Wis. 548. That intention is not to be assumed from the mere fact that general language is used which might include past transactions as well as future. Statutes are frequently drawn in such a manner, yet such general language is held to have been used in view of the established rule that statutes are construed as relating to future transactions and not to past." This is the language of Mr. Justice Paine in the above case; and there can be no doubt that it is fully in harmony with the authorities on this subject. Finney v. Ackerman, 21 Wis. 271, and cases cited; Ely v. Holton, 15 N.Y. 595, and cases cited. In the cases just mentioned the principle under discussion was applied even in remedial statutes. Mr. Justice Cooley announces the same rule as applicable alike to constitutions and to statutes, saying: " It is one of such obvious convenience and justice that it must always be adhered to in the construction of statutes, unless there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively, * * Retrospective legislation is * * commonly objectionable in principle and apt to result in injustice; and it is a sound rule of construction which refuses lightly to imply an intent to enact it." Cooley Const. Lim., 76.

These authorities have been cited and quoted thus at large, not because of any doubt entertained on the subject, but because it is contended on behalf of the State that in consequence of the omitted words, " to be sworn as a witness," as appears in section 1378, supra, the disqualification imposed on the witness Miller, as a consequence of his conviction in 1878, was removed, and he was competent in that capacity. There is nothing in the section referred to which indicates in the remotest degree that the legislature intended it should operate on past transactions, or was designed as a means whereby the competency of a witness lost, by reason of a conviction occurring anterior to the time the...

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