Ex Parte Wilson

• Decision Date: 12 April 1932
• Docket Number: No. 31673.,31673.
• Citation: 48 S.W.2d 919
• Parties: EX PARTE ALEXANDER K. WILSON.
• Court: Missouri Supreme Court

48 S.W.2d 919

EX PARTE ALEXANDER K. WILSON.

No. 31673.

Supreme Court of Missouri.

Court en Banc, April 12, 1932.^*

Habeas Corpus.

PETITIONER REMANDED.

S.S. Nowlin, Omer H. Avery and Anderson, Gilbert & Wolfort for petitioner.

(1) Section 27 of Article XII of the Constitution of Missouri, in so far as it states that "it shall be a crime, the nature and punishment of which shall be prescribed by law, for any president or other officer of any banking institution to assent to the reception of deposits, or the creation of debts by such banking institution after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances," is not self-executing and further acts by the Legislature are necessary to make it effective. Fusz v. Spaunhorst, 67 Mo. 256; Householder v. City, 83 Mo. 493; Cummings v. Winn, 87 Mo. 56. Pursuant to that section, the Legislature had enacted a statute imposing liability civilly for the reception of deposits, Sec. 5381, R.S. 1929, and a statute imposing criminal liability, which latter statute was repealed by the Legislature of Missouri in the 1931 session, Session Acts 1931, p. 201. (2) By the terms of Sec. 4468, R.S. 1929, your petitioner is entitled to any reduction in punishment made by the Legislature after the date charged in the indictment. (3) If Sec. 4468, R.S. 1929, were construed so as to deprive your petitioner of the benefit of the reduction of punishment granted by the Legislature since the date charged in the indictment, said Sec. 4468, R.S. 1929, would deny to your petitioner the equal protection of the law and would deny to your petitioner the benefit of the reduction created by the Legislature by the abolition of punishment for the acts charged in said indictment, contrary to the provision of the United States Constitution and Amendment Fourteen thereof. (4) The Legislature cannot arbitrarily distribute punishment, nor differentiate between members of the same class, nor make classifications without reasonable ground therefor. Statutes which have endeavored to so legislate have been repeatedly held void. State v. Johnsey, 287 Pac. 729; In re Mallon, 16 Idaho, 727; State v. Lewin, 53 Kan. 679. (5) Nor can a law authorize sentence to be imposed after the repeal of a statute providing for punishment, under the terms of the Fourteenth Amendment to the Constitution of the United States. All saving clauses which has been approved which have been concerned with repeal of statutes relating to crimes and punishments which endeavor to continue the power to impose punishment by sentence, beyond the date of the repeal, were so approved prior to the passage of the Fourteenth Amendment to the Constitution of the United States. The question has not been raised that such a saving clause, relating to the continuation of the power to punish for crime after the statute providing for such punishment has been repealed, is in derogation of the Fourteenth Amendment to the Constitution of the United States. At common law the repeal of a statute creating an offense or providing for punishment deprived the court of the power to punish after the repeal of the statute, although the act had ben committed before the statute was repealed. State v. Mathews, 14 Mo. 134.

Stratton Shartel, Attorney-General, and Walter. E. Sloat and Edward G. Robison, Assistant Attorney-Generals, for respondent.

(1) Section 4468, R.S. 1929, relates to cases where after the offense has been committed, but before trial of the cause, the Legislature has reduced the punishment which was prescribed at the time the offense was committed, thus by subsequent legislation lessening the punishment prescribed for this particular crime. (2) The respondent admits that no Legislature has a right to differentiate between members of the same class. No such thing, however, is attempted in the statutes which control the case at bar. (3) In this State our Legislature has wisely provided general saving clauses which apply to actions when the statutes under which the actions have been brought are repealed. Secs. 661, 662, R.S. 1929. The sections of our statutes, supra, as they pertain to criminal causes have been before this court for its consideration on several occasions, in each of the cases presented the convictions have been sustained as well as the general principle relating to the effect of a saving clause in a penal statute. State v. Mathews, 14 Mo. 133; State v. Ross, 49 Mo. 416; State v. Proctor, 90 Mo. 336; State v. Walker, 221 Mo. 518; State v. Lewis, 273 Mo. 535.

HENWOOD, J.

The petitioner seeks, by our writ of habeas corpus, to be released from the penitentiary of this State, to which he was committed under a judgment and sentence of the Circuit Court of Montgomery County.

Issues of law only are presented by the writ and the return of the respondent (warden of the penitentiary) to the writ.

By an indictment filed in the Circuit Court of Pike County on October 16, 1929, the petitioner was charged with receiving a deposit of $100 in the People's Savings Bank of Bowling Green on January 26, 1928, as assistant cashier and a director thereof, with knowledge that the bank was then insolvent. The venue was changed to the Circuit Court of Montgomery County, where the jury found him guilty and assessed his punishment at imprisonment in the penitentiary for a term of three years, on January 29, 1931. His motion for a new trial was overruled on February 20, 1931, but the cause was continued and judgment and sentence deferred from term to term, pending the disposition of five other indictments against him, until November 2, 1931, when judgment was entered and he was sentenced in accordance with the verdict.

In 1931, the Legislature repealed Section 4116, Revised Statutes 1929, under which the petitioner was convicted, and the Act of 1931 became effective on September 14, 1931, before the judgment against the petitioner was entered. [Laws 1931, p. 201.]

Section 4468, Revised Statutes 1929, says: "No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision shall be repealed or amended, shall be affected by such repeal or amendment, but the trial and punishment of all such offenses, and the recovery of such fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except that all such proceedings shall be conducted according to existing laws: Provided, that if the penalty or punishment for any offense be reduced or lessened by any alteration of the law creating the offense, such penalty or punishment shall be assessed according to the amendatory law."

I. The petitioner first contends that the repeal of Section 4116 "results in a total reduction of the punishment" prescribed for the offense of which he was convicted, within the meaning of Section 4468, and that, therefore, the trial court was without authority to assess any punishment against him, or to enter any judgment against him, after the repeal of Section 4116.

[1] There is nothing in Section 4468 to indicate such legislative intent, and it cannot be so interpreted. The general provision of this section, written in clear and unmistakable language, is that the repeal or amendment of a statute which creates an offense shall not affect the prosecution or the punishment of offenders for offenses committed prior to such repeal or amendment. And the meaning of the exception to the general provision is equally clear when the exception is considered in connection with the general provision; that is, that any offender against the criminal laws of this State shall have the benefits of any reduction in the punishment prescribed for the offense by an amendment of the law creating the offense which becomes effective after the commission of the offense but before the entry of judgment and sentence. Indeed, if Section 4468 should be given the construction for which the petitioner contends, the general provision thereof would be meaningless and would serve no purpose.

[2] Moreover, Section 4468 must be construed in connection with Sections 661 and 662, Revised Statutes 1929, which reads as follows:

"Sec. 661. No offense committed, and no fine, penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; but the trial and punishment of all such offenses, and the recovery of such fines, penalties and forfeiture, shall be had, in all respects, as if the provisions had remained in force."

"Sec. 662. No action, plea, prosecution, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal; but the same shall proceed, in all respects, as if such statutory provisions had not been repealed, except that all such proceedings had after the time of taking effect of the Revised Statutes shall be conducted according to the provisions of such statute, and shall be in all respects subject to the provisions thereof, so far as they are applicable."

These saving clauses, in so far as they relate...