Simmons v. State

• Decision Date: 31 October 1848
• Citation: 12 Mo. 268
• Parties: SIMMONS v. THE STATE.
• Court: Missouri Supreme Court

12 Mo. 268

SIMMONS

v.THE STATE.

Supreme Court of Missouri.

October Term, 1848.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

BLENNERHASSETT, for Appellant.

1st. The indictment in this case is clearly defective. It is not sufficient to allege merely in the words of the statute that the defendant practiced law, & c., for a livelihood. It should have charged that he practiced for fees, compensation or reward. Practicing law for a livelihood is a conclusion of law to be drawn from the fact of having practiced for fees and compensation, and if such fact exists, it ought to be stated. The acts which the indictment alleges were committed by the defendant in his capacity as a lawyer, can only be regarded as specifications under the general charge of practicing law for a livelihood, but the indictment does not charge that any of these acts were done for a livelihood or for fees or compensation. The special plea filed by the defendant, and the agreement entered into with the prosecuting attorney admit nothing more than the truth of the facts as they are, as the one set out in the indictment, and it is contended that they are wholly insufficient to authorize the rendition of the judgment in the Criminal Court. 2nd. The statute upon which this indictment was founded is retrospective in its operation so far as this case is concerned and therefore unconstitutional. The 17th section of the Declaration of Rights declares that no law retrospective in its operations can be passed. What constitutes a retrospective law has been defined by the Supreme Court of the United States, Calder and Wife v. Bull, 3 Dallas, 386. Justice Chase, in delivering the opinion of the court in that case says: “Every law that takes away or impairs rights vested agreeably to existing laws, is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect, but there are cases in which laws may justly and for the benefit of the community, and also of individuals relate to a time antecedent to their commencement, as statutes of oblivion and pardon.”

MCBRIDE, J.

At the July term, 1847, of the Criminal Court of St Louis county. the grand jury of said county found an indictment against Cyrenius C. Simmons, for a violation of the provisions of an act of the General Assembly of this State, entitled “An act to sustain the credit of the State,” approved 16th February, 1847. The indictment charges that the defendant, late of, &c., &c., on the 1st day of March, 1847, and on divers other days and times between that day and the day of the finding of this indictment, with force, &c., at, &c., he, the said defendant, being then and there, and on said other days and times a lawyer, following the practice of the law for a livelihood, unlawfully did then and there, and on said other days and times, as a lawyer, as aforesaid, follow the practice of the law as a business, to-wit: giving legal advice and counsel, instituting and prosecuting, managing and acting, arguing and defending lawsuits and causes and motions, for divers persons to the jurors aforesaid unknown, without then and there, and on the said other days and times, having a license therefor, continuing in force, contrary to the form of the statute, &c. The second count charges the same offense but with more particularity, and further charges the defendant with following the practice of the law as a business and for a livelihood.

To the foregoing indictment the defendant filed a special plea setting out that prior to the time laid in the indictment, he applied to and obtained from one of the judges of the Circuit Court of this State, a license to practice as an attorney and counselor at law and solicitor in chancery, in the several courts of record in this State, which said license was granted in pursuance to a statute of this State then and now in force: that his said license continues in force, and that by virtue thereof he did the several acts charged against him, as he lawfully might do, &c. To this plea the circuit attorney demurred and the demurr...