Jim v. State

• Decision Date: 31 December 1832
• Citation: 3 Mo. 147
• Parties: JIM (A SLAVE) v. THE STATE.
• Court: Missouri Supreme Court

3 Mo. 147

JIM (A SLAVE)

v.THE STATE.

Supreme Court of Missouri.

December Term, 1832.

ERROR TO THE CIRCUIT COURT OF HOWARD COUNTY.

TOMPKINS, J.

At the February term of the Circuit Court for Howard county, for the year 1832, Jim was indicted for the murder of William B. Johnson, and pleaded not guilty, and issue was then joined. Afterwards he filed a petition for a change of venue. In this petition he stated that, at the time when this indictment was found, he was the slave of D. Todd, and that he still was his slave; and that said Todd, at the time of finding said indictment, was the Judge of the Circuit Court of Howard county, and that he still continued to be so. The court did not grant the petitioner's prayer. He then moved for leave to plead the facts stated in the petition to the jurisdiction of the court. His motion was overruled. He then, by leave of the court, pleaded the same facts in bar of the prosecution. To this plea a demurrer was filed on the part of the State, and sustained by the court. The prisoner was then put upon his trial, and being found guilty, a motion was made in arrest of judgment, and overruled by the court; judgment was then pronounced, and to reverse this judgment the writ of error is prosecuted.

LEONARD, for the prisoner. At the last term of this court, a transcript of the record of the judgment was produced here, and the court moved for a writ of error and supersedeas, which was granted. The record is now certified to this court, and the plaintiff here has assigned for error, First. The refusal of the court to award a change of venue. Second. The refusal of the court to permit the prisoner to plead to the jurisdiction of the court, the facts suggested in his petition. Third. The judgment of the court for the State, upon the demurrer taken by the Attorney General to the prisoner's special plea in bar. Fourth. The refusal of the court to arrest the judgment on account of defect of jurisdiction.

At the last term, when application was made for this writ of error, it was objected on the part of the State, that a writ of error would not lie in treason or felony, and that if it would, it could only be brought with the consent of the Attorney General. That objection may be renewed at the present term, and will therefore now be answered.

The question might and perhaps ought to be considered at rest by the cases which have already been adjudged in this court: (a slave) against the State, decided in the 2nd District at the term 1831, and Sams against the State, decided in this District at the last December term, are cases directly in point. In support of this jurisdiction, they were brought into the Supreme Court by writs of error taken by the defendants below, to reverse Circuit Court judgments given against them upon indictments for murder, and in the first case the judgment was reversed, and in the last affirmed, and in neither case was the consent of the Attorney General asked or given. In Callaway v. The State, 1 Mo. R. 212, and Blunt v. Shepherd, 1 Mo. R. 219, the opinions expressed by the court do in effect affirm its jurisdiction in the present case; but it is not proposed at this time to rely upon the authority of these cases. The Constitution and laws of this State furnish ample ground to uphold this jurisdiction, independent of any construction which may have been given to our Constitution and laws by the judgment of this court. The constitution (amendments of 1822, 2 sec.) vests the judiciary of the State in a Supreme Court, Circuit Courts, and such inferior tribunals as the General Assembly may from time to time ordain and establish. It then proceeds to distribute this power, and in art. 5, § 2, declares that the Supreme Court, except in cases otherwise provided in that instrument shall have appellate jurisdiction only, which shall be co-extensive with the State, under the restrictions and limitations in the Constitution provided. These restrictions and limitations are found in the 5th sec. of the 5th art. which provides that, “The State shall be divided into convenient districts, not to exceed four, that in each district two terms shall be held annually, and that the court when sitting in either district shall exercise jurisdiction over causes arising in that district only;” and the excepted cases in which this court is authorized to ex cise original jurisdiction, are enumerated in the 3d sec. of the 5th art., where the court has authority conferred upon it “to issue writs of habeas corpus, mandamus, quo warranto, and other original and remedial writs, and to hear and determine the same.” The appellate jurisdiction of this court therefore extends over all the judgments both civil and criminal that are given in the Circuit Courts. For it is expressly declared to be coextensive with the State. To whatever subject or place the original judicial power of this State will reach to that subject and to that place, the appellate jurisdiction of this court extends also; your jurisdiction has the same extent and limits that the former has, and no other. And this great and extensive power is conferred upon this tribunal by the people, not by their agents; by constitutional, not by legislative enactment. The Legislature therefore cannot enlarge nor diminish it, they can neither add to nor take from it. And whenever a case of appellate jurisdiction arises, and the authority of this court is invoked, the court is bound to exert it, it cannot decline the jurisdiction. It is the constitutional right of every subject of the laws of this State to claim its exercise. Such is the view taken by the Supreme Court of the United States, of the power of that tribunal under the Federal Constitution, which in this particular is similar to our own. Durousseau v. The United States, 2 Pet. Cond. R. 382; Marbury v. Madison, 1 Pet. Cond. R. 283; but whether this court can exert the power thus vested in it, without the aid of a legislative act providing the means by which it may be exercised, is a question certainly of great moment; but one that need not now be discussed. In Chesolm's Executors against the State of Georgia, 2 Pet. Cond. R., and in New York v. New Jersey, 5 Pet. U. S. R., 284, the Supreme Court of the United States appear to express and act upon the opinion, that the legislative act is necessary to give the powers of that court activity. And the same opinion in relation to the powers of this court, seems to have been entertained by the court in English v. Mullanphy, 1 Mo. R. 780, and in Blount v Shepherd, 1 Mo. R. 219, the appellate jurisdiction of the court was exercised in a case where the Legislature have not merely failed to provide a writ by which it might be exerted, but had expressly withheld the necessary writ for that purpose; but, however, this question may be settled, the act of the General Assembly, 2 Rev. L. Mo. 491, adopting the common law of England and the 17th sec. of the 1st chap. of the act concerning “Courts,” 1 Rev. L. Mo., provide ample means by which this court can exert its appellate jurisdiction over a final judgment of the Circuit Court given against a defendant on an indictment for murder. The former act, by adopting the common law, introduces into our jurisprudence a writ of error, and the latter act authorizes this court in common with all other courts, “to issue all writs which may be necessary in the exercise of their jurisdiction, according to the principles and usages of law.” By these acts a writ of error is provided, and authority is given to this court to issue it. By means of this writ, this court may exert its appellate jurisdiction in the present case, if by the common law it is an appropriate writ for the revision of the present judgment. At common law a writ of error lies to every final judgment, whether civil or criminal, and to every award in the nature of a final judgment of a court of record, proceeding according to the course of the common law. Co. Lit., 288, 6 Bac. Abr., title “Error.” The Queen v. Patty and others, 2 Salk., 504; 2 Ld. Rayd. 1105; 3 Mass. R. 187, 305; and in England a commission from the King issuing out of chancery under his great seal, to the judges of a Superior Court, authorizing them to examine the record, and on such examination to reverse or affirm the judgment according to law. Bac. Abr., title “Error.” In furnishing this writ, the general law of the land has provided the means by which this court can exert its constitutional jurisdiction over all the final judgments of a Circuit Court and expressly authorized this court to use the writ, if it is necessary, in the exercise of its jurisdiction. And to the objection that the Legislature did not intend to allow the writ in criminal cases, or they would have given it expressly, as they have in civil cases; the answer is obvious. If the constitutional power of this tribunal cannot be exercised, without some law prescribing the manner in which it should be exerted, it is as much the duty of the General Assembly to enact such a law, as it is the duty of the executive to fill this court with its constitutional number of judges. And if a mode in which this court can exert its constitutional power is prescribed in a general system of law which the Legislature has adopted, we cannot in decency presume that the General Assembly tacitly intended, in violation of its duty, to forbid this court from adopting that mode of exerting its authority. Such a construction of the laws of the land, would be an unwarrantable reflection by the judicial department upon a co-ordinate branch of the government. And if this court can entertain jurisdiction of a writ of error in any case where it is not expressly authorized by statute to do so, it will be no difficult matter to show how little ground those have to stand upon, who assert that this jurisdiction cannot be exerted over prosecutions for treason or felony, without consent of the Attorney General. If such was the law of the land, it would not...