State ex rel. McCutchan v. Cooley

• Decision Date: 31 December 1928
• Docket Number: No. 29054.,29054.
• Citation: 12 S.W.2d 466
• Parties: THE STATE EX REL. J.B. McCUTCHAN v. JAMES A. COOLEY, Judge of First Judicial Circuit and Special Judge of Circuit Court of Scotland County.
• Court: Missouri Supreme Court

12 S.W.2d 466

THE STATE EX REL. J.B. McCUTCHAN v. JAMES A. COOLEY, Judge of First Judicial Circuit and Special Judge of Circuit Court of Scotland County.

No. 29054.

Supreme Court of Missouri. Court en Banc.

December 31, 1928.

Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

Rendlen & White, Jayne, Jayne & Jayne and Branham Rendlen for relator.

(1) Sec. 3848, R.S. 1919, as re-enacted Laws 1925, p. 195, is constitutional. State v. Kyle, 166 Mo. 294. This constitutional amendment (Sec. 12, Art. 2) was self-enforcing; it broadened the remedy of criminal prosecution for felonies, but criminal prosecutions by information under it remained subject to legislative control and regulation. State v. Kyle, 166 Mo. 287; 12 C.J. 826, 834. Subsequent to the adoption of the above constitutional amendment and after the above decision of State v. Kyle, 166 Mo., the Legislature did regulate this mode of procedure by adopting the above quoted statute, which is now Sec. 3848, R.S. 1919 (Amended, Laws 1925, p. 125). State v. Lee, 303 Mo. 246. (2) It is a jurisdictional prerequisite in Missouri under Sec. 3848, R.S. 1919, that a preliminary be accorded accused (unless waived by him) before an information can be filed charging a felony; and upon timely motion, an information filed without such preliminary, will be quashed and the proceeding abated. State v. McNeal, 304 Mo. 119. (3) The finding of probable cause and binding over of accused is a jurisdictional prerequisite to the filing of an information for a felony (unless preliminary is waived) and is the basis of the right to proceed in the circuit court by information. State v. Goetz, 65 Kan. 125; People v. Evans, 72 Mich. 367; Morrisey v. People, 11 Mich. 343; Yaner v. People, 34 Mich. 286; People v. Wright, 89 Mich. 78; Coffield v. State, 44 Neb. 417; State v. Williams, 60 Okla. 373; Steiner v. State, 243 Pac. 1003; Muldrow v. State, 185 Pac. 333; Sampson v. State, 217 Pac. 1056; State v. Leicham, 41 Wis. 565; People v. Dillon, 197 N.Y. 254; People v. Lang, 141 App. Div. (N.Y.) 114; State v. Lewis, 31 Wash. 515; State v. Boyce, 24 Wash. 514. (4) "The object and purpose of a preliminary examination" is "to obviate the possibility of groundless and vindictive prosecutions, which the Legislature deemed might otherwise occur where informations were filed and the deliberations of the grand jury dispensed with. It was enacted to prevent the possibility of an abuse of power by the prosecutor. It is intended that the prosecutor should not substitute his judgment for that of a judicial officer. This statute was designed to accomplish the purpose of a presentment by a grand jury under the law as it existed before (the statute and constitutional amendment) in protecting the party against being subjected to the indignity of a public trial for an offense before probable cause had been established against him by evidence under oath." The preliminary examination and the binding over by the justice therein is just as initial and essential to the commencement of the action as the filing of an information. State v. Flannery, 263 Mo. 579; State v. Jeffries, 210 Mo. 320; State v. Sassaman, 214 Mo. 695; People v. Nogiri, 142 Cal. 596; Annis v. People, 13 Mich. 515; Yaner v. People, 34 Mich. 286; People v. Becktel, 80 Mich. 632; People v. Evans, 72 Mich 367; State v. Boulter, 5 Wyo. 236; Steiner v. State, 245 Pac. 1003; Williams v. State, 118 Pac. 1006; Muldro v. State, 185 Pac. 333; Simpson v. State, 217 Pac. 1056; State v. Leicham, 41 Wis. 565; People v. Lang, 125 N.Y. 727; People v. Dillon, 197 N.Y. 254.

Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.

The only serious point raised by relator is the question: Has the prosecuting attorney the authority to file an information in a felony case after a justice of the peace has held a preliminary examination and discharged the defendant? (1) The relator cites a number of cases from other states to sustain his position that the prosecuting attorney had no authority to file an information, because the justice of the peace had discharged him. Some of the cases are not applicable because the statute upon which the decisions are based provides that "no information shall be filed against any person until after a commitment by a magistrate." Such a provision is not in the Missouri statutes. (2) The respondent contends that when taken altogether the decisions of the Missouri Supreme Court warrant the conclusion that the prosecuting attorney has the authority to file an information in a felony case against a defendant, notwithstanding he may have been discharged by a justice of the peace at a preliminary examination. (a) The question of whether a defendant has been accorded a preliminary hearing is not jurisdictional. Ex parte Buckley, 215 Mo. 98; State v. Ferguson, 278 Mo. 129; State v. Shields, 296 Mo. 401. (b) "The preliminary examination after all is but an expedient to prevent a suspected person from escaping and to preserve the evidence and keep the witnesses within the control of the State." State v. Jeffries, 210 Mo. 320; State v. Sassaman, 214 Mo. 723; State v. Flannery, 263 Mo. 586; State v. McNeal, 304 Mo. 133. (c) The grand jury may indict one charged with a felony although he may have been discharged on a preliminary examination. State v. Whalen, 148 Mo. 290; State v. Gieseke, 209 Mo. 339; State v. Millsap, 310 Mo. 511. (d) Although a justice might discharge a defendant after a preliminary examination, such action is not a bar to an information by the prosecuting attorney. State v. Pritchett, 219 Mo. 703; State v. Dooms, 280 Mo. 94. (3) Respondent contends that if it should be decided that Section 3834 means that if a justice of the peace, after a preliminary examination, discharges a defendant, the prosecuting attorney has no authority to file an information in the same case, then the section is unconstitutional and violates Sec. 12, Art. 2, Mo. Constitution. This section of the Constitution was adopted in 1900. Sec. 3834 was originally enacted in 1905. The Constitution makes prosecution by information concurrent with indictment. The Legislature cannot enact a law which would in effect defeat the provisions of the Constitution. 12 C.J. 826, sec. 291.

GANTT, J.

Prohibition. Relator seeks to have this court prohibit Hon. James A. Cooley, Special Judge of the Circuit Court of Scotland County, from proceeding with the trial of five criminal cases pending in said court, wherein relator as director of a bank is charged with assenting to receiving deposits when he knew the bank was insolvent.

The prosecuting attorney, on July 1, 1927, filed five complaints with a justice of the peace of Scotland County covering the identical charges set forth in the informations filed in the circuit court. Relator was accorded preliminary examinations before a justice on said complaints and was discharged. These were the only preliminary examinations accorded relator on the foregoing charges. On December 14, 1927, the prosecuting attorney, disregarding the discharges, filed in the circuit court said informations. Relator did not waive the preliminary examinations, but filed in the circuit court pleas in abatement and motions to quash, for the reason that he had been discharged on the preliminary examinations, and that no other preliminary examinations had been accorded to him.

On the hearing of the pleas and motions, the court admitted in evidence the record of the preliminary examination. This was all the evidence admitted. Motions of the prosecuting attorney to strike out the pleas in abatement and motions to quash, for the reason "that said pleas and motions do not state facts sufficient to authorize the court to sustain the same" were sustained. Thereupon, the defendant, J.B. McCutchan, petitioned this court for our writ of prohibition. Preliminary rule was granted, respondent made return, and relator replied.

I. Respondent contends that "the act of the General Assembly of the State of Missouri, to-wit, Section 3848, Revised Statutes 1919 (Laws 1925, p. 195), requiring a preliminary Constitutional examination to be accorded before an information Statute. can be filed in the circuit court, is in violation of Section 12 of Article II of the Constitution of Missouri." This section of the Constitution is as follows:

"No person shall be prosecuted criminally for a felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies, but this shall not be construed to apply to cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger."

It is contended by this section a prosecuting attorney is authorized to file informations and that the Legislature is without authority to limit him in doing so by the enactment of said Section 3848.

Obviously this section of the Constitution contains no express limitation upon the legislative power, and we are unable to discover a limitation by necessary implication. But the question is not in doubt, for by Section 17 of Article XV of the Constitution it is provided, as follows:

"Arrests and preliminary examinations. Section twelve of the Bill of Rights shall not be so construed as to prevent arrests and preliminary examinations in any criminal case."

This section (17 of Art. XV) was a limitation on the power granted in Section 12 of Article II when Section 12 was amended to authorize prosecutions by informations. In addition, the Legislature had provided for preliminary examinations before the amendment. Therefore the amendment was adopted with the assurance that the Legislature could, and no doubt would, provide for preliminary examinations before the filing of an information. The section of the statute under consideration does not contravene any provision of the Constitution. On the contrary, it was enacted in compliance with an implied direction of the Constitution.

II. Respondent...