State ex rel. Butler v. Foster
| Decision Date | 30 March 1905 |
| Citation | 86 S.W. 245,187 Mo. 590 |
| Parties | THE STATE ex rel. BUTLER v. FOSTER, Judge |
| Court | Missouri Supreme Court |
Writ awarded.
C. H Krum and T. J. Rowe for relator.
(1) The indictment charges petitioner with the commission of a misdemeanor and the circuit court of the city of St. Louis has no jurisdiction. 2 R.S. 1899, art. 18, p. 2149; 2 R.S 1879, sec. 1, ch. 2, p. 1507; Laws 1895, p. 130; 2 R.S. 1899 sec. 27, art. 17, p. 2538. If the offense charged in the indictment is a misdemeanor, the circuit court of the city of St. Louis has no jurisdiction, and an absolute writ of prohibition should issue against the judge of said court. The indictment attempts to charge the defendant in that case with a violation of section 2041, Revised Statutes 1899. The circuit court of the city of St. Louis is without jurisdiction: First, because the offenses denounced by that statute are declared by the statute itself to be misdemeanors; and, second, because the indictment does not allege facts sufficient to show that a witness was induced to absent himself in a case which was a prosecution or proceeding against a person for a felony. R.S. 1899, sec 2041; R.S. 1879, sec. 1426; R.S. 1889, sec. 3673; G. S. 1865, ch. 203, sec. 9, p. 800; Wag. Stats. 1872, sec. 9, art. 5, p. 477; State ex rel. v. Auditor, 36 Mo. 66; Reddick v. The Governor, 1 Mo. 147; Pitman v. Flint, 27 Mass. (10 Pick.) 504; Wheeler v. McCormack, 8 Blatchf. 267; Best v. Gholson, 89 Ill. 465; Farmers' Loan & T. Co. v. Oregon & R. Co., 24 F. 407; Tyman v. Walker, 35 Cal. 634. "Where the language of a statute is clear, direct and positive, leading to no absurd result, and affording a suitable, although not an adequate remedy for an existing evil, courts are to be governed by the obvious meaning and import of its terms, and not to extend its operation because they suppose the Legislature intended to give a more effectual remedy." Ezekiel v. Dixon, 3 Ga. (3 Kelly) 146; Jones v. State, 1 Kan. 273; Barstow v. Smith, Walk. Ch. 394; Bradbury v. Wagenhorst, 54 Pa. St. 180; Union Imp. Co. v. Commonwealth, 69 Pa. 140. A departure from the language of an unambiguous statute is not justified by any rule of construction. U.S. v. Ragsdale, 1 Hemp. (Fed.) 497; Virginia Coupon Case, 25 F. 641; Clarfoss v. State, 42 Ind. 403; Koch v. Bridges, 45 Miss. 247; Railroad v. Clark, 53 Mo. 214; Douglass v. Free-holders of Essex Co., 38 N.J. Law (9 Vroom) 214; Johnson v. Railroad, 49 N.Y. 455; Newell U.M. Co. v. Muxlow, 115 N.Y. 170; U.S. v. Warner, 4 McLean 463; Coffin v. Rich, 45 Me. 507; State v. De Bar, 58 Mo. 395. Penal statutes are to be strictly construed for the benefit of the citizen. State v. McLain, 49 Mo.App. 398; State v. Reid, 125 Mo. 43; State v. Bryant, 90 Mo. 534; State v. Gutzner, 134 Mo. 512; State v. Howard, 137 Mo. 289; State v. Schuchmann, 133 Mo. 111; Dudley v. Tel. Co., 54 Mo.App. 391; State v. McCance, 111 Mo. 398; State v. De Bar, 58 Mo. 398. The general description of offenses, as found in sections 2393 and 2395, Revised Statutes 1899, must yield to the particular provision as found in section 2041, which describes all violations of the statute misdemeanors. The Legislature has declared the offenses mentioned in section 2041 misdemeanors, and its authority and power in the premises is omnipotent. State v. Schuchmann, 133 Mo. 117; Bishop, Stat. Crimes (2 Ed.), secs. 193, 194, 227; Reagan v. United States, 157 U.S. 303; Mackin v. United States, 117 U.S. 348. (2) The indictment does not state an offense upon the theory that the offense is a felony. To constitute an offense under the proviso there must have been a case, which must have been a prosecution or proceeding against some person for a felony. Bribery is a felony, but a general inquiry before a grand jury is not a case. The definition of this word, which generally obtains, is a question contested before a court of justice, an action or suit at law, or in equity. Ex parte Towles, 48 Tex. 453. The word must be taken in its legal sense. Home Ins. Co. v. Packet Co., 32 Iowa 223. It is obvious that the indictment does not allege that there was a case. State v. Emerich, 13 Mo.App. 498; State v. Hamm, 11 Mo.App. 585. If the allegations of the indictment are such as to make the offense charged therein a misdemeanor and not a felony, then the circuit court of the city of St. Louis has no jurisdiction and can not try same. State v. Nicholson, 56 Mo.App. 415; State v. Farrell, 23 Mo.App. 176; State v. Kaub, 23 Mo. 177.
Arthur N. Sager and A. C. Maroney for respondent.
(1) The offense denounced by the proviso of the statute and charged in the indictment is not a misdemeanor but a felony. R.S. 1899, secs. 2395, 2396. It is not the designation nor distinction of any offense which constitutes it a felony or misdemeanor; that is determined by the punishment affixed to it, both at common law and by statute. 4 Bl. Com., 94; Wharton's Criminal Law (10 Ed.), sec. 22; Clark's Crim. Law, sec. 33; Bishop's Crim. Law, sec. 615; Potter's Dwarris, p. 279; State v. Weldon, 70 Mo. 572; R.S. 1899, secs. 2393, 2395, 2375, 2377, 2378. Any offense punishable only by fine or imprisonment in county jail, or both, is a misdemeanor. R.S. 1899, secs. 2095, 2378. Section 2041, Revised Statutes 1899, declares the offense of bribing a witness in any cause, matter or proceeding not excepted out of its provisions by the proviso, i. e., in felony cases, a misdemeanor, and does not prescribe any punishment; but the punishment is prescribed in this case by section 2082. Any offense for which the offender, on conviction, shall be liable by law to be punished with death or imprisonment in the penitentiary is a felony. R.S. 1899, sec. 2393. And the fact that it may include punishment by jail sentence, or by fine, or both, does not rob it of its felonious character. State v. Ingrahm, 7 Mo. 293; State v. Johnson, 7 Mo. 183; State v. Nathan, 8 Mo. 631; State v. Feaslor, 25 Mo. 324; State v. McCorron, 51 Mo. 27; State v. Green, 66 Mo. 631; State v. Weldon, 70 Mo. 572; State v. Reeves, 97 Mo. 688; State v. Clayton, 100 Mo. 516; State v. Bockstruck, 136 Mo. 335; State v. Greenspan, 137 Mo. 149; State v. Gilmore, 28 Mo.App. 561; State v. Melton, 53 Mo.App. 646, 117 Mo.App. 618; State v. Nicholson, 56 Mo.App. 412. (2) To ascertain the intention of lawmakers is the goal of all interpretation, and "in construing statutes, penal as well as others, an interpretation must never be adopted that will defeat its own purpose if it will admit of any other reasonable construction." State ex rel. v. Slover, 126 Mo. 652; State v. Bishop, 128 Mo. 373; State v. Sibley, 131 Mo. 519; Friedman Bros. v. Sullivan, 48 Ark. 215; Kansas City v. Harber, 64 Mo.App. 604; St Joseph v. Elliot, 47 Mo.App. 418; 2 Lewis' Sutherland, Stat. Con. (2 Ed.), sec. 368. (3) The subject discussed in the second point of plaintiff's brief can not be considered by the court in this proceeding. The remedy afforded by the writ of prohibition is granted to prevent usurpation or excess of judicial power. R.S. 1899, sec 4448. Prohibition will not lie to correct errors committed or anticipated which may be corrected on appeal or writ of error. Bowman case, 67 Mo. 146; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Heege, 49 Mo.App. 49; State ex rel. v. Harrison, 53 Mo.App. 346. Even if the question of the insufficiency of the indictment was properly before the court, the limited and restricted definition of the word "case" and the narrow construction urged by the plaintiff is not warranted by the lexicographers or authorities. Century Dic., title "Case," sub-div. 5, p. 840; Anderson's Law Dic., p. 152. Case includes special proceeding as well as actions at law, suits in equity, and criminal prosecutions; and implies not only a controversy, but also legal proceedings. The word as used in the proviso must be construed with reference to the context of the statute which the proviso limits or qualifies. 2 Lewis' Sutherland, Stat. Con. (2 Ed.), sec. 344.
OPINIONIn Banc.
Prohibition.
This is an original proceeding in this court to obtain a writ of prohibition against the respondent, as judge of the circuit court, to prevent his taking further cognizance of a certain prosecution pending in his division of the circuit court of the city of St. Louis, upon an indictment preferred by the grand jury of the said city against said relator, for the reason alleged that the offence charged in said indictment is a misdemeanor only, and by the laws of this State governing and limiting the jurisdiction of said circuit court it has no jurisdiction to try, hear or determine the said cause. The respondent in his return denies that he is proceeding without or in excess of his jurisdiction, and asserts that the offense for which the relator is indicted is a felony by virtue of the statute which relator is charged to have violated, and that the circuit court over which he presides has full authority to hear and determine the same, and unless prohibited he will proceed to try and determine the same. Relator moves for judgment upon the pleadings.
The petition states that on the 22nd day of July, 1904, there was presented by the grand jurors of the State of Missouri within and for the body of the city of St. Louis, and filed in the office of the clerk of the circuit court of said city of St. Louis for the hearing of criminal causes, an indictment against the relator, in words and figures following, to-wit:
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