State v. Bennett

• Decision Date: 15 December 1890
• Citation: 14 S.W. 865,102 Mo. 356
• Parties: STATE v. BENNETT.
• Court: Missouri Supreme Court

14 S.W. 865

102 Mo. 356

STATE v. BENNETT.

Supreme Court of Missouri.

December 15, 1890.

AMENDMENT OF STATUTES — CONSTITUTIONAL LAW — INFORMATION — PRIVATE DETECTIVES.

1. Const. Mo. art. 4, § 25, declares that no act shall "be amended by providing that designated words thereof shall be struck out, * * * but in every such case the act revived or re-enacted, or the part amended, shall be set forth and published at length, as if it were an original act or provision." Held, that where an amended law is germane to the original one, and complete in itself so as to show the full scope of the amendment, the fact that the old sections are not recited in the new law does not make it unconstitutional.

2. The subject of private detectives and their regulation is sufficiently indicated by the title of Act Mo. Feb. 17, 1875, which is as follows: "An act amendatory of an act entitled `An act creating a board of police commissioners, and authorizing the appointment of a police force for the city of St. Louis.'"

3. Section 2 of the act declares that "no person shall act as such private watchman, private detective, or private policeman in said city or county, without first having obtained the written license of the president of said police commissioners, * * * under pain of being guilty of a misdemeanor." An information alleged an offense in the words of the statute, and further declared that, between certain dates, defendant held himself out to the public as a private detective, and entered upon and continued the business of a private detective, and acted as such in various instances, at the request of persons named, and others whose names were unknown, without having a license. Held, that the information was sufficiently definite both as to time and as to the offense charged. BRACE, J., dissenting.

4. The offense denounced by section 2 is that of acting as a private detective, etc., and proof that one merely held himself out as such would show no offense.

5. Acts Mo. 1877, p. 354, entitled "An act to provide for the prosecution of misdemeanors by indictment or information as concurrent remedies," and which applies by the express words of section 1 to all courts having jurisdiction of misdemeanors, and establishes general rules of practice upon the subject, impliedly repeals Acts 1869, p. 197, § 19, prescribing the procedure on information in the St. Louis court of criminal correction.

6. Rev. St. Mo. 1889, § 4057, provides that "all informations shall be signed by the prosecuting attorney, and be verified by his oath, or by the oath of some person competent to testify as a witness in the case," and that "the verification by the prosecuting attorney may be upon information and belief." Held, that an information verified by an assistant prosecuting attorney, "according to his best knowledge and belief," is sufficient.

On rehearing. For former opinion see 11 S. W. Rep. 264.

This prosecution began in the St. Louis court of criminal correction against defendant for acting as a private detective without a license. The amended information, on which the case was tried, reads as follows:

"State of Missouri, City of St. Louis — ss: In the St. Louis court of criminal correction, St. Louis, March 26th, 1886. State of Missouri, Plaintiff, versus Charles Bennett, Defendant. Charged with acting as a private detective without a license. Bernard Dierkes, assistant prosecuting attorney of the St. Louis court of criminal correction, now here in court, on behalf of the state of Missouri, by leave of court first had and obtained, makes an amended information, as follows: `That Charles Bennett, in the city of St. Louis, and state of Missouri, on the 26th day of Feb'y, 1886, and on divers other days and times prior thereto between said date and the 26th day Mch., A. D. 1885, did then and there willfully and unlawfully act as a private detective without having a license so to do from the president or acting president of the board of police commissioners of the city of St. Louis, and did at the place aforesaid, and on the days and times aforesaid, between the dates aforesaid, hold himself out to the public as a private detective, and did enter upon and exercise, and continue the exercise and practice, of the business, avocation, or profession of a private detective, and did for others at the instance, request, and employment of J. A. Gilliam, J. A. Dittrick, Sarah Dittrick, Gisela Noland, Charles Napton, Thos. Furlong, and divers others whose names are unknown, act as a private detective in various instances, within the said city of St. Louis, without having a license therefor from the president or acting president of the board of police commissioners of the city of St. Louis, contrary to the form of statute in such case made and provided, and against the peace and dignity of the state. [Signed] BERNARD DIERKES, Ass't Pros. Attorney of St. Louis Court of Criminal Correction.'"

"State of Missouri, City of St. Louis — ss: Chas. T. Noland, being duly sworn, upon his oath, says that the facts stated in the above information are true, according to his best knowledge and belief. [Signed] CHAS. T. NOLAND.

"Sworn to and subscribed before me, this 20th day of March, 1886. PHILLIPP H. ZEPP, Clerk of the St. Louis Court of Criminal Correction.

"[Signed] By W. L. FITZGERALD, Deputy Clerk."

A motion was made by defendant to quash the information, but it was overruled by the court, and the exception saved. It was based on grounds that will be referred to in the opinion. The evidence need not be set forth at length further than it appears in the opinion. At its close the court gave, at the instance of the state, the following instructions, viz.: "The court instructs the jury that if they believe and find from the evidence that within the time mentioned in the information in this case, and within one year prior to the filing of the same, the defendant, Charles Bennett, did, in the city of St. Louis and state of Missouri, act and serve as a private detective, and so advertise, publish, and hold himself out to the public as being engaged in such capacity of private detective, — he did all this without having any written authority or written license from the president or acting president of the police commissioners of said city of St. Louis, — the jury will convict the defendant of having acted as a private detective without license, as charged in the information. If the jury convict the defendant they will assess his punishment at imprisonment in the city jail not exceeding six months, or by a fine not exceeding two hundred dollars, or by both such fine and imprisonment. In contemplation of law the acts, services, and other things that may be done by one in the capacity of private detective must be done at the instance and employment of others; that is to say, that detective work which he may do in his personal matters does not tend to prove him a detective within the meaning of the law. The court further instructs that, before the jury can convict, they must be convinced from the evidence, beyond a reasonable doubt, that the defendant is guilty, and by the term `convinced beyond a reasonable doubt' is meant `convinced to a moral certainty;' but the doubt here referred to must not be a mere conjecture or possibility of innocence, but a substantial doubt growing out of the evidence."

The court also refused the following instruction among others asked by defendant: "No. 3. The jury are instructed that a person holding himself out as a detective does not come within the law, and they cannot convict the defendant unless they believe from the evidence beyond a reasonable doubt that he acted as private detective within the city of St. Louis within the time specified in the information." The jury convicted defendant, and after motions for a new trial, and in arrest, he appealed here on the ground that constitutional questions were involved, the charge being only for a misdemeanor. In the motion in arrest, the point was made that the information was not properly verified.

John A. Gilliam, for appellant. The Attorney General, for the State.

BARCLAY, J.

1. The question for first consideration is the constitutional one upon which the case has been brought to this court. The prosecution is founded on the following statute, viz.: "Sec. 2. The police commissioners of the city of St. Louis shall have power to regulate and license all private watchmen, private detectives, and private policemen, serving or acting as such in the city or county of St. Louis, and no person shall act as such private watchman, private detective, or private policeman in said city or county, without first having obtained the written license of the president or acting president of said police commissioners of the city of St. Louis, under pain of being guilty of a misdemeanor." That section is part of an act approved February 17, 1875, with the following title, viz.: "An act amendatory of an act entitled `An act creating a board of police commissioners, and authorizing the appointment of a police force for the city of St. Louis,' approved March 27, 1861, and also amendatory of an act entitled `An act amendatory of and supplementary to an act entitled "An act creating a board of police commissioners, and authorizing the appointment of a police force for the city of St. Louis," approved March 27, 1861,' approved March 13, 1867." Defendant claims that this act is unconstitutional, because it is amendatory of earlier acts, and the sections of those acts thereby amended are not set out in full. The provision of the constitution in force when the act in question was passed, and with which it is supposed to conflict, reads as follows, viz.: "No act shall be revived or re-enacted by mere reference to the title thereof, nor shall any act be amended by providing that designated words thereof shall be struck out, or that designated words should be struck out and others inserted in lieu thereof,...