State ex rel. Sweezer v. Green

• Decision Date: 09 October 1950
• Docket Number: No. 41956,41956
• Citation: 24 A.L.R.2d 340,232 S.W.2d 897,360 Mo. 1249
• Parties: , 24 A.L.R.2d 340 STATE ex rel. SWEEZER v. GREEN, Judge.
• Court: Missouri Supreme Court

Page 897

232 S.W.2d 897

360 Mo. 1249, 24 A.L.R.2d 340

STATE ex rel. SWEEZER v. GREEN, Judge.

No. 41956.

Supreme Court of Missouri, en Banc.

Oct. 9, 1950.

H. K. West, Brookfield, for relator.

J. E. Taylor, Atty. Gen., Gilbert Lamb, C. B. Burns, Jr., Asst. Attys. Gen., for respondent.

CONKLING, Judge.

This original action in prohibition challenges the jurisdiction of the respondent circuit judge to proceed under a petition filed, as authorized in Mo.R.S.A. Sec. 9359.3, Laws Mo.1949, p. 252 et seq., in the circuit court of Linn County by bthe prosecuting attorney of that county. The above statutes here questioned, hereinafter referred to as the Act, became effective August 1, 1949, and provide for the detention and treatment of criminal sexual psychopaths. The case is one of first impression in this state.

Generally, the Act declares who shall be considered a 'criminal sexual psychopath' and provides that 'When any person is charged with a criminal offense' and it shall further appear that such person is a criminal sexual psychopath the prosecuting attorney shall file in the pending criminal proceeding a petition 'setting forth facts tending to show that the person named is a criminal sexual psychopath.' The Act further provides what the petition shall contain, for the service thereof upon such person named, and for a hearing to determine whether defendant shall be medically examined, etc.; that if, upon such hearing, prima facie proof of criminal propensities to the commission of sex offenses be made, the court shall appoint medical examiners to examine the person charged. The report of the medical examiners shall not be open to public inspection. It is provided that under stated conditions the court shall dismiss the petition. Under other stated conditions a hearing upon the question of whether such person is a criminal sexual psychopath is required to be held. That hearing may be before a jury. Proper safeguards such as counsel, appeal, etc., are provided. If upon the trial of the issue such person named be judicially found to be a criminal sexual psychopath he may be committed to the State Hospital at Fulton for treatment. The Act sets out the conditions of his release from such detention after such treatment, and contains certain other provisions not here necessary to state.

It is conceded that on July 2, 1949, the prosecuting attorney of Linn County filed in the circuit court of that county an information charging Allen T. Sweezer (hereinafter called relator) with an assault 'on or about the 16th day of June, 1949', in that relator did in the manner fully set out therein 'unlawfully assault one Charlotte Jane Edens.' Thereafter, and on October 21, 1949, the prosecuting attorney filed in the above cause the petition provided for in Mo.R.S.A. Sec. 9359.3 praying the court to make inquiry and determine whether relator was a criminal sexual psychopath. That petition set forth, as required by that section, certain facts tending to establish that for more than a year relator had been suffering from such a mental disorder (as evidenced by specifically pleaded instances of sex deviations with minor female children and women) as made him a criminal sexual psychopath under the Act. After the filing of that petition, and upon the application to us of the relator attacking respondent's jurisdiction to proceed under the prosecuting attorney's petition, we issued our provisional rule in prohibition.

Relator contends (1) that inasmuch as the assault upon Charlotte Jane Edens is alleged, in the information filed July 2, 1949, to have occurred 'on or about the 16th day of June, 1949' (and before the effective date of the Act), that the Act, if criminal in nature is ex post facto, and if civil in nature is retrospective, in violation of Sec. 13 of Article I of our 1945 Constitution, Mo.R.S.A.Const.; (2) that Sec. 9359.4 of the Act, providing that one judicially found to be a criminal sexual psychopath may be committed to the State Hospital for treatment, violates Sec. 17 (relator evidently means Sec. 19) of Article I of the Constitution, in that, the provision of the Act providing for a medical examination of defendant by appointed physicians is violative of the constitutional provision that 'no person shall be compelled to testify against himself in a criminal cause'; and (3) that the Act is violative of the due process of law provision of our Constitution.

Is the inquiry and proceeding provided by the Act civil or criminal in character? As to that we can reach but one conclusion. Ordinarily a criminal proceeding is some step taken before a court against some person or persons charged with a violation of the criminal law. The purpose of a criminal proceeding is to punish. But this Act is but a civil inquiry to determine a status. It is curative and remedial in nature instead of punitive. One of its purposes is the treatment and cure of a present and existing mental disorder. It recognizes and classifies a criminal sexual psychopath as one suffering from 'a mental disorder * * * with criminal propensities to the commission of sex offenses'. The public policy of the State (as expressed in this Act) is to treat and cure such persons, not to punish them. Under the Act sex deviators are merely made subject to restraint and treatment because of their condition and their acts. One of the evident purposes of the enactment is to prevent persons suffering from this mental disorder, though 'not insane or feebleminded', from being punished for crimes they commit during the period of this mental ailment. In character the Act is not unlike statutes which provide for a civil inquiry into the sanity of a person. In principle and application it is not unlike our Juvenile statutes wherein certain minors, when charged with crime, are made a class apart and certain remedial substitutive procedures are provided for in lieu of their being prosecuted under the criminal laws. One purpose of the Act is to protect, treat and cure, and the State here is concerning itself with the future well being and return to normal living of a person so charged. Proceedings under the Act have none of the elements of a criminal proceeding. It is our conclusion that the Act is not criminal in character. State v. Thomas, 318 Mo. 605, 300 S.W. 823; Hirst v. Cramer, Mo.Sup., 195 S.W.2d 738; People v. Chapman, 301 Mich. 584, 4 N.W.2d 18, 25; People v. Sims, 382 Ill. 472, 47 N.E.2d 703; Varholy v. Sweat, 153 Fla. 571, 15 So.2d 267; McGoldrick v. Downs, 184 Misc. 168, 53 N.Y.S.2d 333; Rowan v. People, 6 Cir., 147 F.2d 138; In re Kemmerer, 309 Mich. 313, 15 N.W.2d 652. Inasmuch as the Act is civil in character the ex post facto provision of Sec. 13 of Article I of the Constitution is not violated. State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632, 638; 16 C.J.S., Constitutional Law, Sec. 437, page 889; 11 Am.Juris. Sec. 351, p. 1179.

But what of relator's alternative contention that because the assault upon Charlotte Jane Edens is alleged to have taken place in June before the Act became effective on August 1, 1949, that the Act is retrospective? "Retroactive' or 'retrospective' laws are generally defined, from a legal viewpoint, as those which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past.' Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686, 690; 2 Cooley, Taxation, Sec. 513, p. 1144; 2 Lewis-Sutherland, Statutory Construction, Sec. 641, p. 1157; 50 Am.Jur. Sec. 482, p. 505. A statute is not retrospective because it merely relates to prior facts or transactions but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of a person for the purpose of its operation. Dye v. School District No. 32, 355 Mo. 231, 195 S.W.2d 874, 879; 16 C.J.S., Constitutional Law, Sec. 414, page 857; State ex rel. Ross v. General American Life Ins. Co., 336 Mo. 829, 85 S.W.2d 68, 74; Freeman v. Medler, 46 N.M. 383, 129 P.2d 342; Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332. We have many times held that a statute is not retrospective in its operation within the constitutional prohibition, unless it impairs a vested right. McManus v. Park, 287 Mo. 109, 116, 229 S.W. 211; State ex rel. Jones v. Nolte, supra. Nor is an act retrospective if it but substitutes a remedy or provides a new remedy. McManus v. Park, supra. But no person can have a vested right in an unenforced penalty, which the State could enforce against him if it chose to do so. And the constitutional inhibition against retrospective legislation clearly does not include a law which extenuates or mitigates an offense theretofore committed. Continental Oil Co. v. Montana Concrete Co., 63 Mont. 223, 207 P. 116; Townsend v. Townsend, Peck, Tenn., 1, 14 Am.Dec. 722.

Relator's contention that the Act is retrospective seems founded upon his argument that it 'enlarges the punishment and aggravates the situation in which defendant (relator) finds himself because he could be punished for assault (upon Charlotte Jane Edens) even after he was imprisoned or confined as a sexual psychopath.' He further argues that the maximum punishment upon the charge of assault could not exceed a year in jail (six months) and a fine of $100, R.S.Mo.1939, Sec. 4411, Mo.R.S.A., whereas, if adjudicated a criminal sexual psychopath he could possibly be detained under treatment for an indefinite period. But this Act is not criminal in nature and any detention thereunder is not a punishment. And the Act provides that if one so charged is adjudicated a sexual psychopath the court may either commit him for detention and treatment, or the court may order him tried upon the pending criminal charge 'as the interests of substantial justice may require.' The Act specifically provides, ...