Ex parte Slater

• Decision Date: 31 October 1880
• Parties: EX PARTE SLATER, alias LANE.
• Court: Missouri Supreme Court

72 Mo. 102

EX PARTE SLATER, alias LANE.

Supreme Court of Missouri.

October Term, 1880.

Habeas Corpus.

PRISONER DISCHARGED.

James Hagerman for petitioner, argued that the constitution does not permit the finding of an indictment by a grand jury of any county other than that in which the offense is committed, and that section 1804, Revised Statutes, is, therefore, unconstitutional, citing 4 Black. Com., 303, 350; Wharton Crim. Law, 277, 279; 2 Hawk. Pl. Cr., 313, § 34; 1 Starkie Cr. Pl., (2 Ed.) 14; 1 Bish. Cr. Procedure, § 65; Hughes v. State, 35 Ala. 351, 362; 2 Story Const., 1784; R. S. 1879, § 1774; State v. Denton, 6 Coldw. 539; Kuh v. State, 1 Coldw. 344; Osborne v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52; Swart v. Kimball, 11 Cent. Law Jour. 71, Supreme Court of Michigan; Cooley on Const. Lim., § 320.

J. L. Smith, Attorney-General, contra.

1. The clause in the constitution drawn in question here is simply a declaration in affirmance of a common law right. The right of trial by an impartial jury of the vicinage or county, was always at common law subject to the right of the court to change the place of trial whenever an impartial jury could not be had where the venue was laid. Rex v. Cowle, 2 Burr. 859; Rex v. Harris, 3 Burr. 1330; People v. Webb, 1 Hill 179; People v. Bodine, 7 Hill 147; People v. Vermilyea 7 Cow. 108, 139; Chitty Crim. Law, 201. State v. Miller, 15 Minn. 344.

2. The general assembly has provided that offenses shall be punished in the county where committed, except where otherwise provided by law. R. S., § 1689. This is a legislative interpretation of the meaning of section 22, article 2 of the constitution; that is: That in all criminal cases the indictment shall be presented by a grand jury of the county where the offense was committed, and a trial had therein, except in cases where it is otherwise provided by statute. In the enactment and construction of statute analogous in principle to section 1804, this interpretation has been sanctioned and upheld by the legislative and judicial departments of the State for very many years. The constitutionality of many of these statutes has never been questioned by the bar of this State, though they have been in the statute book for half a century. It is worth whil to refer to the following statutes and adjudicated cases to sustain these conclusions: Section 1647--When property stolen in another state and brought into this State. State Hemmaker, 12 Mo. 453; State v. Williams, 35 Mo. 229; State v. Butler, 67 Mo. 59. Section 1690--In what county party tried in cases of embezzlement. State v. Steerman, 10 Mo. 503. Section 1691--Property stolen in one county taken to another. State v. Smith, 66 Mo. 61. Section 1692--Party wounded in one county and dying in another, indicted and tried in either county. State v. Steerman, 10 Mo. 503: 2 Pick. 551. Section 1693--Party wounded in this State, and dying in another, punished as if the death had happened in the county where the injury was inflicted. Section 1694--Converse of section 1693. Section 1695--Offenses on vessels and cars punishable in any county through or in which the same runs. State v. Steerman, 10 Mo. 503; State v. Worrell, 25 Mo. 205. Section 1697--Offenses committed on boundary, or within 500 yards of such boundary, or where the injury done on one side, and the death on the other side of such boundary. Section 1898--In case of doubt as to which county the offense was committed, the court of either in which the indictment is found, shall have jurisdiction. State v. Grable, 46 Mo. 350. Section 1858--In case of indictment against a judge, it can be removed to a county in a different circuit upon the order of the prosecuting attorney or any judge of the Supreme Court. Sections 1855, 1856, 1857--Change of venue granted to defendant on his own application. State v. Mansfield, 41 Mo. 470.

3. The great object intended to be secured by this constitutional provision, is an “impartial” trial. An impartial trial within the meaning of this provision, means not only a trial without prejudice to the defendant; it means a trial by jury without prejudice toward, or partiality for, either party. If such a trial cannot be had in the county in which the offense is committed, at common law the court was authorized to send the case to some other county where an impartial trial could be had. There is no reason why the courts should not be invested with the same power at the present day. It will not do to say that the defendant may be dragged away from his friends and relatives, and from a people, most of whom are in sympathy with him, and that, therefore, it is violative of the bill of rights. All that the defendant is entitled to have is a fair and impartial trial, not one by his friends or his relatives, or by people whose feelings are in sympathy with him or with his crime. The State furnishes defendant all necessary witnesses, and the court appoints counsel to assist in his defense if he should be too poor to employ them. So that if the defendant is desirous of an impartial trial, there is not a possibility that his right thereto will be in any manner infringed or abrogated.

NORTON, J.

The petitioner in this case is confined in the jail of Audrain county by virtue of a warrant issued from the circuit court of Scotland county upon an indictment found by the grand jury of Scotland county, charging petitioner with having committed the crime of murder in the county of Clark. The principal and controlling question presented for our consideration by the return made to the writ of habeas corpus issued in the case is, whether the grand jury of Scotland county had the power or jurisdiction under the constitution and laws of this State to prefer an indictment charging defendant with committing the crime of murder in Clark county. Section 12, article 2 of the constitution of 1875, provides “that no person shall, for a felony, be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.” Section 22 of the same article provides that “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.” These constitutional provisions secure to the citizen charged with a felony, first, the right to have the charge preferred by indictment before he can be tried, and, second, the right after indictment to a speedy public trial by an impartial jury of the county.

The word “indictment,” as used in section 12, supra, has a well defined meaning, and must be accepted and understood as having been inserted in the constitution with the meaning attached to it at common law. It is thus defined: “An indictment is an accusation at the suit of the king, (or state,) by the oaths of twelve men, (at the least, and not more than twenty-three,) of the same county wherein the offense was committed, returned to inquire of all offenses in general in the county, determinable by the court in which they are returned, and finding a bill brought before them to be true.” 5 Bacon Abridgment, p. 48. The common law definition has been modified in this State by section 28, article 2, of the constitution, which declares that hereafter a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment. The above definition of the term indictment is fully warranted by the following authorities: “Every indictment is to be found by twelve lawful, liege freemen of the county where the crime was committed, returned by the proper officer.” 5 Bacon Abridgment, p. 52. “The grand jury are sworn ad inquirendum pro corpore comitatus, and, therefore, by the common law cannot regularly indict or present any offense which does not arise within the county or precinct for which they are returned, and, therefore, it is a good exception to an indictment that it doth not appear that the offense arose within such county or precinct. An indictment alleging the offense to have been committed in another district than the one in which the bill was found, is insufficient and invalid.” 5 Bacon Abridgment, p. 61. “It seems to be generally agreed at this day that by the common law no grand jury can indict any offense whatsoever which doth not arise within the limits of the precincts for which they are returned. And upon...